Petition — Agapito v. United States
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ONS VOUT, U, .-R:
FILED
JUN 6 {989
ODAK, JRe CLERN
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
921923
CALIXTO AGAPITO, MARTHA CALDERON,
and HORACIO RUEDA,
Petitioners,
-against-
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
BARRY IVAN SLOTNICK
Attorney for Appellant
OF COUNSEL: Calixto Agapito
BARRY IVAN SLOTNICK 233 Broadway
LAWRENCE M. HERRMANN New York, New York 10007
RONALD D. DEGEN (212) 964-3200
RAVECH & ARONSON
Attorneys for Appellant
OF COUNSEL: Martha Calderon
MELVIN RAVECH 2 Center Plaza
RAYMOND SUSSMAN Boston, Mass. 02108
(617) 523-3110
CHARLES SUTTON
Attorney for Appellant
Horacio Rueda
299 Broadway
New York, N.Y. 10007
(212) 964-8612
DICK BAILEY PRINTERS, 290 RICHMOND AVE.,, S.I., N.Y. 10302
TELEPHONE: (212) 447-5358
TABLE OF CONTENTS
Page
Te Te Ta a ois 0 in bk eG i eee il
CEN. . i. cic das wea guaeuls vaewiaee ee oem: l
EET eee ere Per rr Pre he 2
nD ONS 5 ct cawevuwss een ven Dueebeanee 2
Constitutional Provisions and Statutes Involved....... 3
PE AT Ge GMOE,, oo ch ncas acc uacceecuaueeees 3
Reasons for Allowing the Writ...................05: 6
SES pbs bane one 65 cee eee ee 30
Appendix A—Opinion of the United States District
Court for the Southern District... .. 0.0... 0cccces: la
Apendix B—Judgment of the United States Court of
Appeals for the Second Circuit................... 17a
Appendix C—Order of the United States Court of
Appeals for the Second Circuit................... t4a
Appendix D—Affidavit for Search Warrant.......... 46a
ii
TABLE OF AUTHORITIES
Cases:
Arkansas v. Sanders, U.S., 99 S.Ct. 2586 Se °
Berger v. United States, 295 U.S. 78 Ea 29
Brown y. Illinois, 422 U.S. 590 ee 9
Gelbard v. United States, 408 U.S. 41] ae 15
Johnson v. United States, 347 F.2d 803 (2d Cir. 1965).. 24
Katz v. United States, 389 U.S. 347 ia a eee 12
People v. Barndt, 604 P.2d 1173 (Colo. 1980)......... 7
People v. Shuey, 13 Cal. 3d 835, 120 Cal. Rptr.
ee TE) cc 7
People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976). 9
Rakas v. Illinois, 439 U.S. 128 (1978)................ 16
Shuey v. Superior Court, 30 Cal. App. 3d 535
Wow ame Mper. 452 (1973)........................ 16
Spinelli v. United States, 393 U.S. 410 i, an 11
State v. Bean, 89 Wash. 2d 467, 572 P.2d | 102(1978)... 7
State v. Matsen, 287 Or. 581, 601 P.2d 784 ( 1. Se 7
State v. Smith, 112 Ariz. 531, 544 P. 2d 213 Lu, 7
iii
United States v. Boatner, 478 F.2d 737 (2d Cir. 1973)... 22
United States v. Burse, 531 F.2d 1151 (2d Cir. 1976).... 29
United States v. Chadwick, 433 U.S. 1 (1977)......... 7
United States v. Christophe, 470 F.2d 865 (2d Cir.
1972), cert. den. 411 U.S. 964 (1973)............... 6
United States v. Coke, 339 F.2d 183 (2d Cir. 1964)..... 22
United States v. Connolly, 479 F.2d 930 (7th Cir.),
COrt. GRU: SEG UB, BP CPT ccc decker enccctesens 10
United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972). 21
United States v. DeSisto, 289 F.2d 833 (2d Cir. 1961)... 22
United States v. DiNovo, 523 F.2d 197 (7th Cir.),
Cort. GR. See sD. CCNA pS kee eee decease 10
United States v. DiRe, 332 U.S. 581 (1948)............ 14
United States v. Drummond, 481 F.2d 62 (2d Cir. 1973) 29
United States v. Fisch, 474 F.2d 1071 (9th Cir.),
oork. Gee; SES .D. Fee Cer tees as bis hdaiveecsevibess 13
United States v. Giordano, 416 U.S. 505 (1974)........ y
United States v. Grunberger, 431 F.2d 1062 (2d Cir.
SOPs 6c cdtevcs Leeder WO a 22
United States v. Guglielmini, 384 F.2d 602 (2d Cir.
STE . 50.0 bi ewan eee thaw choke ceases Vereen 24
iv
United States v. Harris, 403 U.S. 573 (1971)..........
United States v. Jackson, 588 F.2d 1046 (Sth Cir.
1978), cert. den. U.S., 99S. Ct. 2882 (1979). ........
United States v. Jenkins, 525 F.2d 819 (6th Cir. 1975). .
United States v. Kleve,465 F.2d 187 (8th Cir. 1972)....
United States v. Lopez, 584 F.2d 1175 (2d Cir. 1978)...
United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973). .
United States v. Picariello, 568 F.2d 222 (1st Cir. 1978).
United States v. Persico, 305 F.2d 534 (2d Cir. 1962)...
United States v. Tane, 329 F.2d 848 (2d Cir. 1964).....
United States v. Taylor, 562 F.2d 1345 (2d Cir. 1977)...
United States v. Torres, 519 F.2d 723 (2d Cir. 1975)....
Von Utter v. Tulloch, 426 F.2d 1 (I\st Cir.), cert. den.
Se ares TES so vo kc oe bes ae vend kawkhebiusee
Wong Sun v. United States, 371 U.S. 471 (1963).......
Ybarra v. Illinois, U.S., 100 S.Ct. 338 (1979)..........
CONSTITUTIONAL PROVISIONS
Constitution of the United States
EEE eee Fe ee
(Eee OE Mey are ene SN
STATUTES
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Pe Pe NN 005 6140600 0bc6 0b anne beenseeueees
Be Si ln G, c cc ace cicicenvcesscndeeneeees
PULA GUINTC i0k vices snescacewansb ena wneel
OTHER AUTHORITIES
Amsterdam, Perspectives on the Fourth Amendment,
Pe ee Tse Hs UO 0 can t0dccdskasenekeen
In THE
Supreme Court of the United States
October Term, 1979
CALIXTO AGAPITO, MARTHA CALDERON,
and HORACIO RUEDA,
Petitioners,
-against-
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT.
Calixto Agapito, Martha Carderon and Horacio Rueda
petition for a writ of certiorari to review judgments of the
United States Court of Appeals for the Second Circuit, which
affirmed judgments of conviction of the United States District
Court for the Southern District of New York.
OPINION BELOW
The United States District Court for the Southern District
of New York denied a motion to suppress physical evidence and
statements in an opinion dated October 5, 1979 and repovied in
477 F. Supp. 706 (see Appendix A).
The Court of Appeals affirmed the judgments of convic-
tion in a Per Curiam opinion on March 12, 1980 not yet
reported (see Appendix B). A petition for rehearing in banc was
denied without opinion on May 7, 1980 (see Appendix C).
JURISDICTION
The judgments of the Court of Appeals were dated and
entered on March 12, 1980. The orders denying the petition for
rehearing in banc were dated and entered on May 7, 1980.
Jurisdiction is conferred upon this Court by 28 U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Whether the illegal entry into, aining in and seizure
of a suitcase containing cocaine in a ot, nome require the sup-
pression of the cocaine, even if a valid search warrant was
subsequently obtained.
2. Whether the search warrant violates the petitioners’ con-
stitutional rights under the Fourth Amendment and is invalid
because probable cause to search is not contained within the
four corners of the supporting affidavit, the agents withheld
vital information from the magistrate, and the tainted portions
cannot be excised.
3. Whether the federal agents’ pressing their ears against a
door connecting their hotel room with the hotel room of
Agapito and Calderon and thus using the door to carry the
sound of petitioners’ movements and conversations constituted
the use of a ‘‘mechanical device’’ under 18 U.S.C. §2510 and
violated their constitutional rights under the Fourth and Fifth
Amendments.
4. Whether the agents had probable cause to arrest peti-
tioners.
5. Whether the petitioners’ claims of constitutional viola-
tions are precluded, in part, by a lack of standing.
6. Whether the Trial Judge improperly commented to
counsel and on the evidence in the presence of the jury and
thereby deprived petitioners of a fair trial and due process of
law under the Fifth Amendment.
7. Whether the prosecutor improperly commented on ob-
jeciions by defense counsel, pretrial suppression hearings, peti-
tioners’ failure to hire a chemist, and the prerequisite for bring-
ing an accusation and thereby deprived petitioners of a fair trial
and due process of law under the Fifth Amendment.
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
Constitution of the United States, Amendment IV Searches
and seizures.
‘*The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.’’
Constitution of the United States, Amendment V Due Pro-
cess
**No person shall be . . . deprived of life, liberty or proper-
ty, without due process of law....”’
Statutes, United States Code 18 U.S.C. §2510(5)
‘** ‘electronic, mechanical, or other device’ means any
device or apparatus which can be used to intercept a wire or oral
communication....’”’
STATEMENT OF THE CASE
Petitioners were tried before Honorable Irving Ben Cooper
and a jury and convicted of a violation of 21 U.S.C. §846 and 21
U.S.C. §841(a)(1) under the first and fourth counts of the in-
dictment, respectively. In addition, Rueda was convicted under
the second and third counts of a violation of 21 U.S.C.
§924(c)(2) and 21 U.S.C. §841(a)(1). The trial court sentenced
petitioners on June 27, 1979. Agapito received concurrent terms
of five years imprisonment on each count and Special Parole for
a period of three years. Calderon was sentenced to one-year im-
prisonment with credit for time served on the first count, a five-
year prison term with execution suspended and placement on
Probation for five years on the fourth count, and Special Parole
for a period of three years. Rueda was sentenced to concurrent
terms of seven years imprisonment on Counts One, Two and
Four, a consecutive term of imprisonment of three years on
Count Three, and to a term of Special Parole for a period of ten
years.
The indictment was filed on March 1, 1979. The charges
stemmed from confiscations by Drug Enforcement Administra-
tion agents. They seized a gun from Rueda at the time of his ar-
rest and recovered cocaine in a hotel room and in an apartment
in Manhattan. Count One charged Agapito, Calderon and
Rueda with a conspiracy to violate the federal narcotics laws
from February 5, 1979 to the date of filing of the indictment.
Count Four accused all three of the petitioners of distribution
and possession with intent to distribute approximately one
kilogram of cocaine on February 22, 1979. The remaining
counts addressed acts allegedly committed by Rueda alone on
the same date. Count Two dealt with the distribution and
possession with intent to distribute approximately eight
kilograms of cocaine and Count Three concerned the carrying of
a firearm during the commission of a felony.
Prior to trial a four-day hearing was held on petitioners’
motion to suppress all evidence seized from (1) their persons, (2)
room 1701 of the Sheraton-Americana Hotel and (3) apartment
3B at 328 East 85th Street and to suppress any and all statements
made by them. The motion was denied on April 30, 1979.
On February 21, 1979 a DEA agent received an informant’s
tip that cocaine was stored in room 1701 of the Hotel Sheraton.
The informant, in turn, had acquired this information from an
5
unidentified close friend. DEA agents stationed themselves in
room 1702 and other parts of the hotel. By placing their ears
against the connecting door with room 1701—occupied by
Agapito and Calderon—they could overhear movement and
some conversations. Unless they put their ears against the door,
the agents could not discern what was being said on the other
side. They saw Agapito and Calderon through the open door in
the room and followed Calderon to the lobby, where she made a
telephone call. The next day Rueda came to room 1701 with a
shoulder bag and an attache case. When he left the agents ar-
rested him and recovered a loaded gun.
At DEA headquarters Rueda admitted that he had brought
cocaine into room 1701, but later retracted this statement.
Thereafter, Agapito and Calderon left the room with an attache
case, similar to the case carried earlier that day by Rueda. They
were placed under arrest and $29,000 was found in the attache
case. The agents entered room 1701 with Agapito and Calderon
in custody to ‘‘secure’’ it and remained there until after 4:00
P.M. the next day.
While in room 1701 a female telephoned three times. Agent
Forteza spoke with her in an undercover capacity, learned her
address and agreed to meet her there. At the apartment the
agents entered, searched the premises with the consent of the
female occupant—Ligia Atehortua—and recovered cocaine,
money and drug paraphernalia.
The agents and Ligia Atehortua went to room 1701 where
she spent the night. A suitcase in the room was removed
unopened to room 1702, which had a connecting door to 1701.
The next day at 4:00 P.M. Agent Aponte obtained a search war-
rant for room 1701 and the suitcase and a shoulder bag located
therein. He telephoned this news to the agents at the hotel.
Upon opening the suitcase, they found cocaine.
6
REASONS FOR ALLOWING THE WRIT
1. The Effect of the Illegal Entry and Seizure Prior to the
Obtaining of a Search Warrant Question.
This court has not decided what effect the illegal entry into
premises and the improper seizure of a suitcase therein have
upon the admissibility at trial of contraband found in the suit-
case after the securing of a warrant.
The Court of Appeals held that the entry into petitioners’
hotel room could not ‘‘be justified as a security check and was
illegal’ (slip op. 1707). Nevertheless, that Court concluded that
‘*{ajlthough the agents seized the suitcase in Room 1701 which
contained the cocaine, they did not open it until after the war-
rant had been obtained. The one kilogram of cocaine,
therefore, was admissible if the warrant was valid. United States
v. Christophe, supra, 470 F.2d at 869”’ (slip op. 1709). Our
research discloses no federal case or statutory law supporting
this holding. The Second Circuit in United States v. Christophe,
(470 F.2d 865, 869 [2d Cir. 1972], cert. den. 411 U.S. 964 [1973]
permitted federal agents ‘‘to conduct a cursory examination of
the premises to see if anyone else was present who might
threaten their safety or destroy evidence.’’ In that case,
however, the defendant was lawfully arrested in his house; a |
‘multi-room dwelling, rather than a single room was involved;
and the heroin was discovered in the garage following a full
scale search after the warrant was obtained three hours later.
Here, the petitioners were arrested outside the hotel and in the
lobby seventeen floors below; the agents entered the premises il-
legally; after determining that third persons were not present,
the agents reynained almost twenty-four hours; a suitcase (later
found to contain cocaine) was seized and confiscated and taken
from Room 1701 to Room 1702; the agents looked in the closets
and into a shoulder bag left by Rueda in the room; telephone
calls were intercepted; a civilian was brought into the room; she
and the agents used it for overnight sleeping quarters; and the
7
warrant was not obtained until twenty-four hours later. ‘‘In
short, they moved in’’ (slip op. 1706). The entry was illegal, the
moving in for twenty-four hours was illegal and the seizure of
the suitcase containing cocaine was illegal. The agents’ actions
constituted an unconstitutional deprivation of petitioners’
rights and a substantial invasion of privacy. No illegality took
place in Christophe—the only authority cited by the Court of
Appeals.
In State v. Matsen (287 Or. 581, 601 P.2d 784 [1979]) the
Supreme Court of Oregon addressed the identical issue set forth
here. The police in Masten, armed with probable cause, but
without a warrant, entered a residence and ‘‘ ‘froze the
premises’ ’’ (601 P.2d at 786). Thereafter a search warrant was
obtained and executed three and one-half hours later. A com-
plete search of the residence pursuant thereto uncovered the
evidence used against the defendants at trial. The Oregon court
decided that ‘‘the subsequent securing of a search warrant does
not affect the validity of the original warrantless entry’’ (/bid.
788). Accordingly, it s»»pressed the evidence seized, although it
was not a fruit of the illegal act (cf. United States v. Picariello,
568 F.2d 222, 225 [lst Cir. 1978]). The Supreme Courts of
Washington and California had previously adopted the ra-
tionale of the Oregon tribunal (State v. Bean, 89 Wash. 2d 467,
572 P.2d 1102, 1105 [1978]; People v. Shuey, 13 Cal. 3d 835,
850, 120 Cal. Rptr. 83, 94, 533 P.2d 211, 222 [1975]; but see
People v Barndt, 604 P.2d 1173, 1175-1176 [Colo. 1980]; State v
Smith, 112 Ariz. 531, 544 P.2d 213, 216 [1975}).
This Court has distinguished between the seizure and the
search of luggage—most notably when discussing the
automobile exception. However, the controlling factor present
in such cases, but absent here, is the propriety of the initial
seizure (Arkansas v. Sanders, U.S., 99 S.Ct. 2586, [1979];
United States v. Chadwick, 433 U.S. 1 [1977]). This Court did
not address the situation where the initial police action was il-
legal. It is respectfully urged that a constitutionally prohibited
entry and search of a dwelling mandates the suppression of any
8
contraband ultimately found therein. The illegal seizure of the
Suitcase, whether or not it was opened, intruded greatly upon
the petitioners’ privacy. Our research has uncovered no judicial
authority artificially dichotomizing a seizure in order to render
the container illegally seized, but finding the contents, never-
theless, admissible at trial.
The Court of Appeals ruling herein undermines the exclu-
sionary rule. It affords no protection to anyone from un-
constitutional police conduct, so long as ultimately a warrant is
secured. Thus, the police can break in, move in, intercept
telephone calls and commit the greatest invasions of privacy im-
aginable, including sleeping in a citizen’s bed, eating at his table
and using his personal belongings, without fearing the suppres-
sion of contraband found therein, provided that they eventual-
ly, at their leisure, obtain a warrant. Even judicial approval in
the form of a search warrant issued by a neutral magistrate does
not countenance the invasion which took place here. If this
Court allows the decision in the instant case to stand, no effec-
tive redress or future bar to this constitutionally repugnant
police behavior will exist.
This case presents the Court with the Opportunity to decide
if an illegal search of a room and seizure of a Suitcase therein re-
quire the suppression of contraband eventually fouiid in the
suitcase after the issuance of a search warrant based upon pro-
bable cause.
2. The Probable Cause for the Search Warrart Question.
After holding the entry into petitioners’ hotel room illegal,
the Court of Appeals sustained the search warrant, because
“*[t}wo untainted portions of the affidavit contain a sufficient
showing of probable cause to render the warrant valid’’ (slip op.
1709). The Court below relied upon ‘*Rueda’s confession that
he had delivered cocaine to Room 1701”’ and the ‘‘information
furnished by Mr. X, which was corroborated by the agents’ own
observations”’ (/bid.)*
* The affidavit in support of the search warrant is reproduced in
Appendix D.
9
A. The Severability of the warrant
in excising the tainted portions of the affidavit to deter-
mine if the remainder provides probable cause, the Court of
Appeals relied upon Mr. Justice Powell’s concurring opinion in
United States v. Giordano (416 U.S. 505, 554-556 [1974]) and a
number of federal decisions. However, this Court has not yet
decided the propriety of this procedure and whether the exclu-
sionary rule should be so limited.
B. The suitcase
From the affidavit and the testimony at the hearing it
became clear that the agents learned of the existence of the suit-
case by illegally entering the room and viewing it there. Since
without the illegal actions of the police the suitcase would not
have been included among the places to be searched, its contents
should be suppressed (Wong Sun v. United States, 371 U.S. 471
[1963]; People v. Williams, 192 Colo. 249, 557 P.2d 399, 405
[1976}).
C. Rueda’s confession
The statement by Rueda as it appears in the affidavit in
support of the search warrant is tainted, unreliable and
misleading. The admission was obtained as a direct result of the
exploitation of Rueda’s illegal arrest and, accordingly, is
tainted.* (Brown vy. Illinois, 422 U.S. 590 [1975]; Wong Sun v.
United States, 371 U.S. 471 [1963)).
The testimony at the suppression hearing showed that
Rueda had recanted the statement immediately after having
made it. His confession was the subject of much controversy
and many inconsistencies in the District Court.**
* The lack of probable cause for Rueda’s arrest is discussed in
Reason 4, infra.
** The court stated that it was unimpressed with Agent Torres’
testimony (Rueda allegedly confessed to her) and found it difficult to
elicit testimony about an event less than seven weeks old.
10
Most important of all, the statement misled the magistrate.
While the affiant is not required to include a" known informa-
tion in his application for a warrant, the bare averment that
Rueda made an admission deceived the magistrate and
prevented him from accurately assessing the information before
him. Had the magistrate known of some of the circumstances
surrounding the statement in question, he might well have given
it little or no weight. This case affords this Court the opportuni-
ty to decide the extent of the duty of the police and prosecutor
to disclose exculpatory information to a neutral magistrate.
Unless such data is forthcoming, the magistrate may find pro-
bable cause when none exists.
D. The information
In paragraph 2(a) of the affidavit the informant describes
the source of his information merely as a ‘‘close friend.’’ While
double hearsay is acceptable, it is necessary that ‘‘both levels of
hearsay meet the two-pronged test spelled out in Aguilar’’
(United States v. Connolly, 479 F.2d 930, 941 [7th Cir.] cert.
dism. 414 U.S. 897 [1973]; United States v. Jenkins, 525 F.2d
819, 823 [6th Cir. 1975]; United States v. DiNovo, 523 F.2d 197,
200 [7th Cir.], cert. den. 423 U.S. 1016 [1975]; United States y.
Kleve, 465 F.2d 187, 192 [8th Cir. 1972]). Here, no further in-
formation concerning the ‘‘close friend”’ is contained in the af-
fidavit. ‘‘Narcotics informants do not enjoy a reputation for
veracity’’ (Von Utter v. Tulloch, 426 F.2d 1, 3 {Ist Cir.], cert.
den. 400 U.S. 826 [1970]). Therefore, the affidavit fails to fur-
nish a basis for finding the ‘‘close friend’’ credible and is defi-
cient.
According to the affidavit, the ‘‘close friend’’ told the in-
formant that ‘‘he had been inside Room 1071 at the Sheraton-
Americana Hotel, 810 Seventh Avenue, New York, New York
and had seen there approximately four kilograms of cocaine
and, further, that the room was occupied by a man and a
woman named Martha.’’ While personal observations are a
reliable source of information, here the recitation in the af-
11
fidavit is fatally lacking in specificity. For example, the time and
date of observations, a description of the room’s occupants, the
reason for the belief that the cocaine was still in the room, the
basis upon which the friend concluded he was viewing cocaine,
how the cocaine was packaged and where it was stored were not
noted in the affidavit. No allegation was made that the infor-
mant or his friend feared for their life or safety (United States v.
Harris, 403 U.S. 573, 583, [1971]); and a statement that one has
seen cocaine can hardly be considered a declaration against
penal interest. ‘‘This meager report could easily have been ob-
tained from an offhand remark heard at a neighborhood bar’’
(Spinelli v. United States, 393 U.S. 410, 417 (1969) and did not
enable the magistrate to ‘‘know that he is relying on something
more substantial than a casual rumor circulating in the under-
world or an accusation based merely on an individual’s general
reputation’’ (393 U.S. at 416).
Paragraphs 2(b) to (k) recount observations of DEA agents
from their arrival at the hotel until the arrest of Agapito and
Calderon. In sum, they state that the agents confirmed that a
female named Martha and a male occupy Room 1701; that she
left on two occasions and he never left the room prior to their
arrest; that overheard conversations indicated that someone was
expected on February 22, 1979; that at 12:30 P.M. someone in
Room 1701 stated, ‘‘I am in 1701 come on down;’’ that Rueda
arrived with a shoulder bag and a small boy; that thereafter the
agents ‘‘heard sounds of a ripping and a shuffling, suggesting
the tearing of tape and/or the counting of money;”’ that Rueda
left without the shoulder bag and was in possession of a loaded
gun when arrested; that Rueda stated that he had brought co-
caine into Room 1701; that Agapito and Calderon were arrested
while the former was carrying an attache case containing
$29,000. *
* The lack of probable cause for Agapito’s arrest is discussed in
Reason 4, infra.
12
From the above recitation we submit that the only aspect of
the information corroborated in the affidavit is that Room 1701
was occupied by a male and a female named Martha. Peti-
tioners’ conduct was unremarkable and wholly innocent in ap-
pearance. In fact it was inconsistent with the agents’ expecta-
tions, as established at the hearing, that Rueda had come to pick
up cocaine; for he arrived with a shoulder bag and left empty-
handed.
In sum, after excising the ‘‘untainted portions of the af-
fidavit,’’ the informant and his information are unreliable and
the agents’ observations are insufficient corroboration to fur-
nish probable cause.
3. The Overhearing of Petitioners’ Conversations Question
The Court of Appeals found that the agents did not violate
the Fourth Amendment by pressing their ears to the connecting
hotel room door. It did not specifically address the issue of
whether the door constitutes a ‘‘mechanical device’’ under 18
U.S.C. §2510(5). It held ‘‘that the expectation of privacy
asserted by appellants here is not reasonable’’ and relied ‘‘upon
three critical factors’’ (slip op. 1690). Petitioners respectfully
submit that by closing the door to their room and speaking in
Spanish and in a normal tone, they relied upon a privacy which
the Government violated (see Katz v. United States) 389 U.S.
347 [1969}).
The Second Circuit stated:
‘*First, appellants’ conversations were heard by the nak-
ed human ear. Regardless of whether the tones may be
described as loud or normal, the fact remains that ap-
pellants were talking /oud enough [emphasis in original] to
be heard by others in an adjoining room. The agents were
unaided by any artificial, mechanical or electronic device’
(slip op. 1691).
13
The testimony at the suppression hearing established that the
agents could not distinguish words and that a defense witness
could not understand even a shout from the next room, unless
their ears were pressed against the door. Petitioners urge that
they reasonably expected privacy and that the door thus served
as a ‘‘mechanical device.’’ This Court has not considered the
propriety of such eavesdropping.
Next, the Court of Appeals reasoned: ‘‘Second, the agents
had a legal right to be in the adjoining room’’ (/bid.). As the
Court later noted, ‘‘the absence of a trespass’’ is not a ‘‘con-
trolling factor’’ (Jbid. 1692). The cases cited and followed by
the Court refused to ‘‘divide the listening room into privileged
or burdened areas’’ (Jbid. at 1691; United States v Fisch, 474
F.2d 1071, 1077 [9th Cir.], cert. den. 412 U.S. 921 [1973];
United States v. Jackson, 588 F.2d 1046, 1054 [Sth Cir. 1978},
cert. den. U.S., 99 S.Ct. 2882 [1979]). However, in those cases
the courts did not consider the effect of the Omnibus Crime
Control and Safe Streets Act of 1968.
Finally, the Court of Appeals noted: ‘‘Third, appellants
were in a hotel room”’ (slip op. 1693). Of course, some people
live permanently in a hotel, while others spend a good part of
their lives there. A hotel room is no different than rented space
in a rooming house or an apartment. Professor Anthony G.
Amsterdam of Stanford Law School observed:
‘*But if you live in a cheap hotel or in a ghetto flat, your
neighbors can hear you breathing quietly even in temperate
weather when it is possible to keep the window and the
doors closed. For the tenement dweller the difference bet-
ween observation by neighbors and visitors who ordinarily
use the common hallways and observations by policemen
who come into the hallways to ‘check up’ or ‘look around’
is the difference between all the privacy that his condition
allows and none. Is that small difference too unimportant
to claim fourth amendment protection?’’ (Amsterdam,
Perspectives on the Fourth Amendment, 58 Minn. L. Rev.
349, 404 [1974]).
14
This reasoning applies equally well here. Even a transient at a
hotel has an ‘‘expectation of privacy.”’
In sum, this case presents this Court with the opportunity
to rule on a novel question of law.
4. The Probable Cause to Arrest Question
A. Rueda
The information available to the agents when they placed
petitioners under arrest is set forth under Reason 2, supra. With
respect to Rueda, the agents had not seen or heard him commit
a single suspicious act before placing him under arrest in the
hotel lobby. He had merely gone to a hotel room with a small
boy and left without an attache case and shoulder bag. The
agents, based upon their tip, had anticipated the arrival of so-
meone to pick up cocaine. It was, therefore, highly improbable
that Rueda had violated the law when he left without a package.
Presumably, he was arrested for conspiracy; however, mere
presence, even at the scene of a crime does not constitute pro-
bable cause to arrest for conspiracy (United States v. DiRe, 332
U.S. 581 [1948]). To hold otherwise would be to go against the
grain of the Constitution and this Court’s prior rulings (cf.
Ybarra v. Illinois. U.S., 100 S.Ct. 338 [1979]).
B. Agapito and Calderon
Agapito and Calderon were arrested as a result of a double
hearsay tip, minimum corroboration of innocent aspects of the
information furnished and Rueda’s dubious admission follow-
ing his arrest.* Assuming that this Court accepts petitioners’
contentions concerning the absence of probable cause to arrest
Rueda and the standing of the remaining petitioners to assert
that claim, no probable cause can be found. The observations
of the agents, coupled with double hearsay information from an
isolated informant never in direct contact with the agents, did
not permit them to arrest Agapito and Calderon.
* A discussion of the standing issue is contained in Reason 5, infra.
15
5. The Standing Question
In the District Court the prosecutor maintained that
Agapito and Calderon lacked standing to contest the validity of
Rueda’s arrest. Similarly, he contended that Rueda could not
complain about the arrests of Agapito and Calderon and any
unlawful invasion of the hotel room or the seizure in
Atehortua’s apartment. This argument, if accepted, completely
sterilizes the exclusionary rule and invites unconstitutional
police tactics.
The petitioners suggest that the sole purpose of Rueda’s ar-
rest was to build a case against Agapito and Calderon without
risking the suppression of evidence because of an illegal arrest
and search. Mr. Justice Douglas concurring in Gelbard v.
United States (408 U.S. 411 [1972]), eloquently stated:
‘*We are told that police are often tempted to make illegal
searches during the investigations of a large conspiracy.
Once the police have established that several individuals
are involved, they may deem it worthwhile to violate the
Constitutional rights of one member of the conspiracy
(particularly a minor member) in order to obtain evidence
for use against others’’ (/bid. at 67).
Rueda was an unknown person whose conduct did not indicate
that he had contraband on him. The agents were seeking to
gather evidence to support the arrest of Agapito and Calderon
and the search of their room. Therefore, the agents sacrificed
nothing, from their point of view, in building their case, when
they took Rueda into custody.
The actions of the DEA agents consist of a _ well-
coordinated series of distasteful and/or illegal acts. For twenty-
two hours they listened to every sound coming from Room
1701. Without probable cause they arrested Rueda and obtained
an alleged admission, subsequently recanted. Instead of relying
upon normal investigative techniques, they arrested Agapito
16
and Calderon and invaded their hotel room. Without a warrant
they remained in Room 1701 for twenty-four hours, took a suit-
case, later found to contain cocaine, out of the room and. in-
tercepted incoming telephone calls. They obtained consent to
search, reduced to writing two hours later, from a lady whose
child they held. This woman, not arrested, was then safeguard-
ed in the hotel room from which the unopened suitcase had been
removed, also for ‘‘safekeeping.’’ Now the Government desires
to avoid implementation of the exclusionary rule because it
violated A’s rights to obtain evidence against B and then
violated B’s rights to gather evidence against A. In addition, the
petitioners’ grievance rests upon the use of illegally obtained
evidence not just to convict, but to deprive them of their Fourth
Amendment rights. No case uncovered in our research dealt
with this issue where the motive for violating A’s rights @ priori
was to obtain evidence against B.
In Rakas v. Illinois (439 U.S. 128 [1978]) this Court held
that two passengers in an automobile could not challenge the in-
troduction into evidence of a sawed-off rifle and shells seized
during a search of the car, where neither the car, the rifle nor
the shells belonged to them. The crucial difference between
Rakas and the case at bar is the presence here of a motive to ar-
rest A to gather evidence against B. It is this vice for which the
exclusionary rule is needed. Moreover, in the case before this
Court, the arrests were removed in time and place from the il-
legal acts (see also United States v. Tane, 329 F.2d 848, 852-853
[2d Cir. 1964]).
Petitioners request that this Court modify the exclusionary
rule to prevent the abuses committed herein by applying it to
situations of willful constitutional violations, regardless of stan-
ding, or by broadening it ‘‘for its deterrent effect, disregarding
nice questions of standing with respect to the particular defen-
dant who moves to suppress,’’ because ‘‘the victim of the il-
legality is the judicial process itself?’ (Shuey v. Superior Court,
30 Cal. App. 3d 535, 542 106 Cal. Rptr. 452, 457 [1973]).
17
6. The Conduct of the Trial Judge Question
The trial developed into a conflict between the Trial Judge
and defense counsel for petitioner Rueda. The spill over effects
also deprived Agapito and Calderon of a fair trial.
The record contains literally well over one hundred in-
stances in which the trial judge either ‘‘instructed’’ defense
counsel, belittled the defense case, accused the defense at-
torneys of wasting time by their objections and cross-
examination, called defense objections ploys to keep out un-
favorable evidence, impaired the examination of witnesses,
bolstered the Government’s witnesses or praised the prosecutor.
The trial judge further failed to adequately handle an incident
of possible jury misconduct and the jury’s exposure to the fact
that the defendants were in custody. Various examples are cited
below. A reading of even the cold record as a whole leaves the
distinct impression that counsel for petitioners could only have
been intimiated and the jury influenced by the conduct of the
court.
When defense counsel for Rueda objected to a claimed
misstatement of the evidence in the prosecutor’s rebuttal sum-
mation, the trial judge scolded him:
‘*THE COURT: Objection overruled. Sit down and stop
interrupting unnecessarily and without rea! foundation. It
wasn’t done to you while you were going forward’’ (A.
319).*
* References are designated as follows: ‘‘A’’—Appendix in the
Court of Appeals; ‘‘Tr.’’—Trial commenced on May 9, 1979 and con-
cluded on May 23, 1979.
Defense counsel objected seven times during the rebuttal summa-
tion. Five of these objections form the basis for Reason 7, infra, deal-
ing with prosecutorial misconduct (A. 313, 314, 322, 323, 325). The
remaining two objections, for drawing improper inferences from facts
not in evidence and for misstating the evidence, were not frivolous (A.
316, 391). The prosecutor was interrupted five times during his sum-
mation (Tr. 1470, 1472, 1484, 1485, 1486) and, in turn, objected six
times during Mr. Sutton’s closing argument (Tr. 1509, 1510, 1512,
1514, 1519, 1523) and two times when Mr. Sussman summed up (Tr.
1548, 1555).
18
Following defense objections to two statements by the pro-
secutor that the defense can hire a chemist, the judge rebuked
the attorney:
*“THE COURT: According to you, but not according to
the judge. Please do not interrupt, and sit down’”’ (A, 322).
** *
“THE COURT: Will you sit down? I don’t know
whether you are purposely trying to prevent the govern-
ment from completing or what your purpose is, but those
are idle, senseless objections, and you will please curtail
them’’ (A. 323).
In ruling upon defense objections, the judge admonished:
**THE COURT: .. . No technicalities are going to in-
terfere with the doing of justice in my court...” (A.
208).
** *
**THE COURT: You have made it. It is ineffective. It is
almost surplussage, and in my opinion has absolutely no
weight... ’’ (A. 238).
** *
**THE COURT: Get back. Get back. I know. I know.
You just do not—you are not particularly pleased with
what the Court is endeavoring to accomplish’’ (A. 246).
** *
**THE COURT: . . . You may not like it, but that’s his
answer, and I see no sense in pursuing the same thing. Go
to something else’’ (A. 247).
** *
*“THE COURT: What you are trying to do is prevent me
from reading what you think or you believe will not be
helpful and I intend to do everything I said I would do”’
(A. 286).
The trial judge often overruled objections or argument by
telling defense counsel to sit down or stand back. (A. 77-78, 86,
19
160, 173, 174, 191, 226, 236, 314). At one point, with an im-
measurable chilling effect on other counsel, the judge ordered
the marshal to come forward and see that Mr. Sutton sat down
whenever the court instructed him to do so (A. 273-274). The
judge called upon the marshal to put counsel in his seat several
times (A. 168, 284, 286). When an objection was voiced by co-
counsel to the continued presence of the marshal at the defense
table, the judge retorted, ‘‘If the lawyer does not respond I in-
tend to have the marshal do it. If you don’t, I will do the same
with you”’ (A. 287).
Throughout the trial the court personally rebuked defense
counsel, as demonstrated by the following excerpts:
“THE COURT: ... Your voice is loud and raucous.
Please keep it down. It gets wearisome when you keep
screaming’ (A. 239-240).
** *
‘‘THE COURT: Wait a minute. The judge asked a ques-
tion whether you like it or not. When I ask a question, you
remain quiet, sir’’ (A. 80).
** *
“THE COURT: I got your point. You overdo it all the
time. I got your point’’ (A. 182).
** *
‘“THE COURT: Now look here, sir. You know full well
that he doesn’t and you know full well from your ex-
perience that all he can tell us is when he got it for the pur-
poses of analyzing it. That question is absurd, unwar-
ranted and silly’’ (A. 264).*
At other times the court accused Rueda’s attorney of
wasting time, thereby suggesting that the objections were
fruitless or the cross-examination ineffective; for example: ‘‘We
are not playing a game here. Let’s proceed”’ (A. 204); ‘‘I want
to give you ample opportunity, but if you are going to get intoa
* The prosecution had voiced no objection to the question which
provoked this outburst.
20
microscopic situation here and waste our time I will halt
you...Cut out the microscopic stuff’? (A. 209); ‘‘The
meticulousness has got to stop. We will be here for another
week’’ (A. 212); ‘‘I don’t care what you think. Just remain quiet
while I am talking. You don’t like it, but I want it on the record,
and I want to show that you are wasting time’’ (A. 249); ‘‘Oh,
for goodness sake. Come on, will you, sir?’’ (A. 262). The
ultimate blow came near the beginning of Mr. Sutton’s summa-
tion when the court commented: *‘I wish you would get down to
the evidence in the cse counsel’’ (Tr. 1510).
Even more disturbing than the above disparaging remarks
were the repeated innuendos and outright appearances that the
defense attorneys sought to deceive the jury: ‘‘Wait a minute.
You know that you slipped on that one, so you are rushing me.
You had his attention called to the time, and he was answering
you as to the time’ (A. 184); ‘‘Sir, you won’t get anywhere that
way. I heard you about 13 [Exhibit 13] and then you pushed 14
in’’ (A. 186-187); ‘‘No, that’s just a smart move, sir’’ (A. 192);
‘Show him the whole thing or I am going to show it to
him... . But you were not doing it that way, and you know
full well you weren’t’’ (A. 193-195); ‘‘Wait a minute. You have
done that entirely too often and I have cautioned you about it’’
(A. 196); ‘‘You don’t want me to think that you are trying to
trap him, do you?”’ (A. 211); ‘‘I won’t let you continue to do it
that way. You are notorious for doing it that way’’ (A. 213);
‘*Now, come on, Mister. I know exactly what you are
doing .. . . Don’t waste time. Don’t waste time. You already
have a copy. You know what it is. Don’t turn those pages as
though you never saw it before... .1 don’t care what you
think. Now you go ahead and get through with it so we can pro-
ceed with the trial and don’t purposely waste time’’ (A. 225);
‘*If the other side had said that you would say he is making
himself an expert witness’’ (A. 241); ‘‘Do you seriously contend
that when a manual is distributed to those who do the work of
this witness that they are then to make a study before they use it
21
of the authors who compiled it?’’ (A. 244)*; ‘‘Aciually what
Mr. Sutton was objecting to he himself did. He brought in an
entirely different case’ (A. 275); ‘‘You were the one who knew
full well that this witness had told us the name Jaime when he
testified before me. You did not reveal that yourself’’ (A. 276);
‘*Your obligation as a lawyer is to deal straight forward with the
judge’’ (A. 281-282). Other verbal exchanges between the judge
and defense counsel appear throughout the trial record (e.g., A.
81-82, 188-189, 217-218, 234-235, 276-280, 293-294). Finally,
the judge expressed open disbelief in Mr. Sutton’s statement
that he had requested the prosecutor to produce a press in court
and told the jury that in his presence Mr. Sutton ‘‘merely said
he wanted to see it’’ (A. 305-30€). Actually, he had said outside
the jury’s presence: ‘‘When we see it we might decide to have it
put in, your Honor. We will discuss it’’ (A. 300-302).
Motions for a mistrial based upon the appearance of bias
on the part of the judge were denied (A. 165-166, 282). Another
motion for a mistrial was greeted with a verbal lashing (A. 170),
an objection to the prosecutor’s screaming was excused as a
natural reaction to defense counsel (A. 245), and an objection
to the court’s yelling at co-counsel resulted in the attorney being
reprimanded (A. 168-169).
The above constitutes but part of the prejudicial aspects of
the trial. The cumulative effect of just this portion was a strain-
ed atmosphere which ‘‘could not have helped but prejudice the
jury’? (United States v. Persico, 305 F.2d 534, 537 [2d Cir.
1962]; see United States v. Dellinger, 472 F.2d 340, 386 [7th Cir.
1972]). True, the court was careful to give instructions that it
had no opinion and that the attorneys had a right and duty to
fight (see e.g., A. 123-126, 335-336, 337-338, 344-345).
However, these remarks pale against the comments made and
* This remark was part of a continuous attempt by the court to aid
the chemist. Through cross-examination, defense counsel sought to
attack the basis for the chemist’s conclusions. Accordingly, he in-
quired about the manual upon which the chemist relied. The court's
comments destroyed this line of interrogation, as noted, infra.
22
conduct displayed throughout the trial and cannot undo the pre-
judice. The jury could only conclude that the judge knew the
law, but, in spite of his instructions, did express his opinion on
the evidence. The only remedy is reversal (United States v. Naz-
zaro, 472 F.2d 302, 312-313 [2d Cir. 1973]).
In United States v. Boatner (478 F.2d 737, 740 [2d Cir.
1973] the Court of Appeals warned the same trial judge that
‘There may be a point, however, when hostility between court
In United States v. Boatner (478 F.2d 737, 740 [2d Cir.
1973] the Court of Appeals warned the same trial judge that
‘There may be a point, however, when hostility between court
and defense counsel alone creates the kind of embattled and
prejudicial atmosphere in the courtroom that makes a fair trial
impossible.’’ Unfortunately, whether egged on or not by
Rueda’s attorney’s behavior, the judge prevented the petitioners
from receiving a fair trial. Here, we have much more than “‘the
few brief incidents’’ in Boatner (id. at 741). Moreover, ‘‘if
defense counsel acted improperly they should be dealt with by
sharp reprimand outside of the hearing of the jury or if necessry
by use of the contempt power’’ (United States v. Persico, supra
at 540; United States v. Grunberger, 431 F.2d 1062, 1068 [2d
Cir. 1970]; United States v. Coke, 339 F.2d 183, 185 (2d Cir.
1964]; United States v. DeSisto, 289 F.2d 833, 835 [2d Cir.
1961}).
The court took a big role in the examination of witnesses.
Judicial interruptions permeate the record. Sometimes the judge
took over or restricted cross-examination (A. 193-195, 197-201,
297-299, 303-304). When the chemist was questioned by the
defense, the court’s questioning increased (A. 239-269). Coupl-
ed with the excessive judicial participation during the cross-
examination of the chemist were repeated attempts to bolster his
testimony as follows: ‘‘Just sit down [Mr. Sutton]. The govern-
ment will clear that up’’ (A. 226); ‘‘You must not let the inter-
ruptions affect you. You just stick to your testimony, do you
understand?”’ (A. 227); ‘‘I know you said it, but I want to be
23
sure that there isn’t evey a shadow about it’’ (A. 237).*
Throughout the trial the court’s comments enhanced the
Government’s witnesses or excused their memory lapses (A.
97-98, 106-107, 192A, 251, 255-258, 268). In fact, the judge
observed, ‘‘I am going to give the government an opportunity to
clear up whatever impressions were left as a result of the cross”’
(A. 266) and ‘‘You can clear that up, Mr. Livingston (A. 190).
Motions for a mistrial and objections to the court’s open
assistance to the prosecutor were rejected (A. 98-99, 108-109,
111-116, 162-164, 170-171).
The judge also recognized the constant friction between
himself and counsel. Twice he reprimanded counsel in private
(A. 176-179, 288-292). However, he chose to upbraid defense
counsel in front of the jury for what he deemed the needless
consumption of time in cross-examination by reading from and
then expanding upon the Federal Rules of Evidence (A.
202-203). On the other hand, the court, from time to time,
praised the Assistant United States Attorney: ‘‘I’m sorry to in-
terrupt you. Did Mr. Livingston at any time directly or indirect-
ly tell you to testify to anything other than what you knew to be
the truth’’ (A. 84); ‘‘He [Assistant United States Attorney] has
an obligation to see that it is removed. If he doesn’t he violates
his position. I don’t think he would dare do that’’ (A. 159); ‘‘l
feel that the deportment of the United States Attorney was ex-
emplary under the circumstances’’ (A. 298).
Defense counsel objected to the prosecutor stating that cer-
tain requested reports had already been turned over to him. The
* Whether the tested substances contained cocaine was a contested
issue. The court took the wind out of the defense sails by its conduct
during the examination of the chemist. The prosecutor sprung a leak
in the boat by saying if the defense claims were serious they could hire
a chemist (see Point Three, infra). The court sunk the ship by charg-
ing, ‘‘Although there seems to be little dispute as to this, you must,
however, still find beyond a reasonable doubt that the substance con-
tained in the government’s exhibits in evidence is cocaine’ (A. 393). A
defense exception to the reference to “‘little dispute’ was rebuffed (A.
429-430).
24
judge intervened by noting, in part, ‘‘The jury does not know
until it is told that the government has furnished each counsel
with a great deal of material in advance of trial, some of it that
the government was not compelled to produce at all’’ and conti-
nuing to defend the prosecutor (A. 223-224). Later, the court
repeated that the prosecutor gave more than the law requires
(A. 296).
The continuing comments of the trial judge require reversal
(United States v. Nazzaro, supra at 310; United States vy.
Grunberger, supra at 1067; United States v. Coke, supra at 185;
United States v. DeSisto, supra at 834-835). The turning over of
Jencks Act material should not be commented upon (see United
States v. Guglielmini, 384 F.2d 602, 605 [2d Cir. 1967]; Johnson
v. United States, 347 F.2d 803, 805 [2d Cir. 1965]) and bolsters
the credibility of the witnesses, if not used to impeach them.
Three prejudicial incidents involving the jury occurred dur-
ing the trial. Each time the court’s remedy was inadequate.
Counsel for Calderon notified the court that he had observed
the petitioners in handcuffs with the marshals in the presence of
the jury. The judge questioned the marshals, who acknowledg-
ed the incident, but denied that the petitioners were in hand-
cuffs. No further action was taken (A. 117-122). Even if no
handcuffs were seen, the effect was the same, since the jurors
undoubtedly knew the identity of the marshals from having seen
them in court when they were summoned by the judge to place
Mr. Sutton in his seat. The inherent prejudice of being seen in
custody was not rebutted, because no remedial action was
taken. In both United States v. Taylor (562 F.2d 1345, 1359 {2d
Cir. 1977]) and United States v. Torres (519 F.2d 723, 727 [2d
Cir. 1975]) the court questioned the jurors and minimized any
possible harm. Here, the situation was aggravated by the
judge’s insistence upon being seen on the bench at 9:00 A.M.,
whether or not the petitioners had been produced. When the
possible prejudice to the petitioners as a result of this practice
was raised (A. 129), the judge, in essence, answered that he con-
sidered it more important that the jury see him at 9 o’clock and
25
realize he did not keep them waiting than that the petitioners’
incarceration be kept hidden from them (A. 147-149),
A more serious incident occurred later that day when the
two interpreters overheard some jurors discuss the case and
State that Mr. Sutton was trying to get the case thrown out on
technicalities and was hoping for a mistrial (A. 127-137). The
judge immediately contaminated the entire jury by relating the
incident to them. Instead of conducting a voir dire in chambers
of the jurors individually, the judge gave a long dissertation and
merely asked each juror, ‘‘Do you get what I am saying?’’ or
“Do you understand me?’’ (A. 137-146). A motion for a
mistrial directed at the inadequacy of the court’s instructions
was denied (A. 150-155).
On the afternoon of the second day of deliberations a jury
note required the reconvening of all parties and the jury. The
judge read the note to the jury and gave supplemental instruc-
tions (A. 442-448). When the jury retired, defense counsel stated
that the petitioners had not been present and moved for a
mistrial. The judge angrily criticized the attorneys for noc hav-
ing brought the matter to his attention. The attorneys respond-
ed that they were afraid to interrupt the court, that they could
not alert the court without calling attention to their clients’
absence, and that they had moved for a mistrial. The exchange
between the court and counsel reflects the tempo of the entire
trial and shows how the judge’s domination of the proceedings
denied the petitioners a fair trial (A. 448-457). The effect of the
jury not seeing the petitioners may have been devastating. Since
the next time that the jury returned to court was to render its
verdict, the jurors could well have concluded that the petitioners
were in custody or had fled the jurisdiction.
In sum, the comments to defense counsel and on the
evidence, coupled with the bolstering of the prosecutor and his
witnesses, could only have conveyed the message that the judge
thought the petitioners were guilty. The mishandling of the jury
incidents aggravated the damage. Either set of circumstances
alone would have severely prejudiced the petitioners. Together
they denied them their due process right to a fair trial.
26
7. The Prosecutorial Misconduct Question
The defense attorneys argued at trial that the DEA agents
had fabricated the charges which resulted in the arrests and pro-
secution of the petitioners. In summation they questioned the
role of Ligia Atehortua and what she had received for her
cooperation (Tr. 1558-1561). Additionally, they attempted to
thoroughly cross examine the chemist (Tr. 1041-1124) and
criticized his qualifications and findings in closing argument
(Tr. 1536-1540),
In his rebuttal summation the prosecutor attacked defense
counsel personally and blamed them for the dearth of informa-
tion about Ligia, arguing (or testifying) as follows:
‘Ladies and gentlemen, I submit to you that the at-
torneys are making those arguments and are making im-
proper arguments and that they know it in advance of
making those arguments.
‘‘I submit to you, ladies and gentlemen, that if I had
asked any agent ‘What did Ligia Atehortua tell you, what
did she say, just exactly what was her cooperation,’ I sub-
mit to you that if I had asked those questions, you would
have heard screams in this courtroom, ‘Objection, in-
justice, the government is trying to convict these people on
the basis of hearsay.’
‘“Now they come in here and they criticize the govern-
ment for not bringing out the very evidence that they
would have objected to if we had tried to do it.
“*MR. SUTTON: Your Honor, I think that I—
“THE COURT: Please sit down, sir’’ (A. 313-314).
The prosecutor continued:
‘*MR. LIVINGSTON: And they tell you ‘No apparent
reason for making these arrests. No one saw Rueda com-
mit a crime,’ they say, and these lawyers know what the
legal standards are for making an arrest, and they know
that they are entitled to hearings before trial—
27
‘MR. SUTTON: Objection.
‘*THE COURT: Overruled.
‘‘MR. LIVINGSTON: —to determine whether or not
there was reasonable basis for making the arrest and they
know what information was elicited during the hearing
prior to this trial as to what caused the agents to make this
arrest, and they know whether there is evidence which can-
not be brought into the trial for legal reasons. They know
all about that, and yet they are arguing to you, ladies and
gentlemen of the jury, no apparent reason for the arrest.
‘*l submit to you, ladies and gentlemen, that those are
improper arguments to be made to you”’ (A. 314).
Immediately thereafter, the Assistant United States At-
torney immediately stated ‘‘They are playing around further
with legal concepts here’’ (/bid.) and four times asserted ‘‘They
know...’ (A. 314-315).
A short time later in his rebuttal summation the prosecutor
remarked, ‘‘of course, they can hire a chemist, too’’ (A. 321).
An objection was overruled and defense counsel was told,
‘*Please do not interrupt and sit down’’ (A. 322). The pro-
secutor repeated the offensive reference and the following oc-
curred:
‘*It is the same way with respect to every single bag of
white powder in this case. If they don’t believe the
chemist’s infrared analysis was correct, they can hire a
chemist, and that chemist can—
‘*THE COURT: Now what is it?
‘‘MR. SUTTON: We have absolutely no burden of pro-
of, your Honor—
‘‘MR. LIVINGSTON: As I said, they don’t have that
burden of proof.
“THE COURT: Will you sit down. I don’t know
whether you are purposely trying to prevent the govern-
ment from completing or what your purpose is, but those
are idle, senseless objections, and you will please curtail
them’”’ (A. 322-323).
28
Finally, the prosecutor improperly responded to a defense
argument of frame by informing the jury, ‘‘There are legal stan-
dards involved in making accusations. There are legal re-
quirements that have to be met before you can bring a defen-
dant to trial. You cannot accuse anyone you wish.’’ Defense
counsel again objected in vain (A. 325).
In the first excerpt quoted above, the prosecutor told the
jury that the defense attorneys utilize objections to keep
evidence from them and he knowingly sought to deceive the
jury. The inevitable indirect suggestion was that counsel believes
their clients are guilty and must resort to improprieties.
The references to knowingly made improper statements by
defense counsel were often repeated when the prosecutor men-
tioned the pretrial hearing. In so doing he also conveyed the
message to the jury that the judge had already passed with ap-
proval upon the credibility of the DEA agents and the propriety
of the arrests.*
Two separate times the prosecutor maintained to the jury
that the petitioners could hire a chemist.* These comments
clearly conflicted with the petitioners’ right not to submit
evidence on their own behalf. Unlike the situation where a
witness is available to both sides, here the prosecutor told the
jury that if the defense attorneys truly doubted the findings and
conclusions of the chemist, they would have had their own ex-
pert examine the suspected drugs (see United States y. Lopez,
* In his summation the prosecutor told the jury that the agents ex-
ecuted a search warrant in the hotel room and defense counsel ob-
jected (A. 307-308, 311). This statement, likewise, suggested that the
court sanctioned the police work and bolstered the Government
witnesses’ credibility.
* The validity of the chemist’s conclusions was a hotly contested
issue. The error in summation was compounded by the trial juuge’s in-
terference with cross-examination, his comments and his charge, as
noted in Reason 6, supra.
29
584 F.2d 1175, 1178-1179 [2d Cir. 1978]; United States v. Burse,
531 F.2d 1151, 1154-1155 [2d Cir. 1976]). No instructions about
the rights of a defendant not to testify or produce evidence can
offset the effect of these court approved arguments. Instead of
nipping the transgression in the bud, the court exacerbated the
error by describing the objection in front of the jury as ‘‘idle’’
and “‘senseless”’ and warning defense counsel to curtail such in-
terruptions (A. 323). .
The prosecutor’s allegations that certain legal standards
must be met before an accusation can be made nullified other
instructions by the court that an indictment is proof of nothing.
The jury could only conclude that perhaps the indictment is in-
significant, but, nevertheless, the DEA agents cannot ‘‘accuse
anyone [they] wish’’ (A. 325).
Instead of giving prompt and effective curative instructions
to dispel any prejudice, the lower court placed its imprimatur on
the challenged remarks and chastised defense counsel for objec-
ting in the first place. The case against petitioners was not over-
whelming—considering the many inconsistencies in the
testimony, the number of people who had access to the hotel
room, including Ligia, and the absence of proof of actual
possession or physical evidence corroborating the DEA agents’
testimony—so that the cumulative effect of these errors,
especially when considered with the conduct of the trial judge
(see Reason 6, supra), mandates reversal (see Berger v. United
States, 295 U.S. 78, 88-89 [1935]; United States v. Drummond,
481 F.2d 62, 64 [2d Cir. 1973)).
30
CONCLUSION
CERTIORARI SHOULD BE GRANTED AND THE
JUDGMENT BELOW REVERSED.
Respectfully submitted,
BARRY IVAN SLOTNICK
Attorney for Appellant
OF COUNSEL: Calixto Agapito
BARRY IVAN SLOTNICK 233 Broadway
LAWRENCE M. HERRMANN New York, New York 10007
RONALD D. DEGEN (212) 964-3200
RAVECH & ARONSON
Attorneys for Appellant
OF COUNSEL: Martha Calderon
MELVIN RAVECH 2 Center Plaza
RAYMOND SUSSMAN Boston, Mass. 02108
(617) 523-3110
CHARLES SUTTON
Attorney for Appellant
Horacio Rueda
299 Broadway
New York, N.Y. 10007
(212) 964-8612
Appendices
la
APPENDIX A
Opinion of the District Court
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
79 Cr. 135 (IBC)
OPINION NO. 49154
UNITED STATES OF AMERICA,
-against-
CALIXTO AGAPITO, MARTHA CALDERON and
HORACIO RUEDA,
Defendants.
*e* eee
IRVING BEN COOPER, D.J.
The defendants Calixto Agapito, Martha Calderon and
Horacio Rueda were arresied by agents of the Drug Enforce-
ment Agency (DEA) on February 22nd, 1979. Defendant Rueda
was charged with one count of conspiring to violate the Federal
narcotics laws (Count 1), two counts of possession of cocaine
with intent to distrtibute (Counts 2 and 4) and one count of
possession of a firearm during the commission of a felony
(Count 3). Defendants Agapito and Calderon were charged with
one count of conspiracy (Count 1) and one count of possession
-2a-
of cocaine with intewnt to distribute (Count 4).'
Prior to trial, defendants moved for suppression of
evidence and dismissal of the indictment as being the result of il-
legal arrests, searches and seizures, and illegal investigatory tac-
tics, in contravention of the Fourth, Fifth and Sixth Amend-
ments of the Constitution of the United States.’
Facts
On the afternoon of February 21, 1979, an informant call-
ed DEA headquarters and spoke to Special Agent Victor
Aponte, informing him, in substance, that a ‘‘close friend’’’ of
the informant, identified by first name, had been in Room 1701
of the Sheraton-Centre Hotel at 810 Seventh Avenue in
Manhattan where the friend hads seen and sampled approx-
imately four kilograms of cocaine. The informant had, in the
past, furnished similar information to the authorities from the
same source and it had proven reliable. The informant himself
was considered reliable by the DEA agents, for his information
on several occasions lead to convictions and at least two search
warrants which survived attack.
Agent Aponte testified that Mr. X had told the informant:
he had been in Room 1701 before; the room was occupied by a
Colombian man (later identified as the defendant Agapito) and
a Cuban woman named Martha who came from Miami; Martha
had been staying at the hotel for several days; and Martha and
Agapito planned to leave New York by the weekend.
Special Agents Bell and Forteza were sent to the Sheraton,
and confirmed with the hotel security personnel that Room 1701
was occupied by one Martha Calderon who hasd given a Miami
address, had stayed in the room approximately one week, and
had paid in cash at a double rate on a daily basis.
The agents obtained access to Room 1702 which adjoined
Room 1701, a single locked door between. By pressing the nak-
3a
ed ear against the crack of the adjoining door, the agents were
able to overhear noises and parts of conversations emanating
from Room 1701. The agents remained in Room 1702 and were
joined by other agents who took turns with Bell and Forteza at
pressing their ears against the door. They also maintained
surveillance at the entry to Room 1701.
The agents testified to hearing many fragments of conver-
sations between a man and a woman, and gathered that so-
meone was to visit the room the next day, February 22, 1979.
After a telephone conversation, the woman, later identified as
Martha Calderon, was overheard to say in effect: ‘‘He is coming
over about 11:00 a.m. tomorrow.”’
In mid-afternoon on February 22, 1979, DEA agents
observed a male, later identified as Horacio Rueda, carrying a
shoulder bag and an attache case, enter Room 1701, accom-
panied by a small boy. The only other activity in and out of
Room 1701, since the agents commenced surveillance on
February 21st, occurred when Martha Calderon left the room
(followed by Agent Forteza), made a phone call in the lobby
and returned; also when room service delivered food to the
room.
From their position in Room 1702, the agents were able to
hear greetings when Rueda entered Room 1701, conversation
accompanied by ripping or tearing sounds as well as a shuffling
sound, suggesting the tearing of tape and/or the counting of
money. Agent Aponte heard one of the men say: ‘‘one-five-
zero-zero-zero.””
Soon after, Rueda left the room with the small boy,
without the shoulder bag and attache case. Rueda was arrested
by agents in the lobby of the hotel, searched in the DEA car out-
side the hotel and then taken to DEA headquarters. At the time
of his arrest, he was carrying a loaded .22 caliber derringer.
After being advised of his rights at DEA headquarters,
Rueda stated to a Spanish-speaking agent that he had just taken
cocaine to the room. Rueda’s statement was conveyed, by tele-
phone, to the agents in Room 1702.
4a
At approximately 4:00 p.m. on the afternoon of February
22nd, Agapito, carrying an attache case (apparently the same at-
tache case Rueda had brought to the hotel room), and Martha
Calderon left Room 17U1. They were arrested just outside the
hotel, the attache case was seized from Agapito, forced open,
and found to contain $29,000 cash. Thereafter agents entered,
secured and remained in Room 1701 in order to continue their
investigation, apparently expecting additional phone calls
relating to the sale of drugs would come there. They did not at
that time search the room but opened the adjoining door to
Room 1702 where Agapito and Calderon were temporarily de-
tained. :
At approximately 6:00 p.m. on February 22nd, the phone
rang in Room 1701. Agent Forteza, a Spanish-speaking agent
acting undercover, answered the phone. A female caller, later
identified as Ligia Atehortua, inquired whether Horacio and her
son hads been to the hotel room. Ligia called back twice more,
and finally gave permission to Agent Forteza, posing as an
associate of Agapito and Calderon, to come to her apartment,
3B, 328 East 85th Street, in New York City.
Upon their arrival at the apartment, Ligia admitted Agent
Forteza, followed by other agents, into the apartment. Forteza
identified himself as a DEA agent, and obtained Ligia’s consent
verbally and later in writing to search the apartment. When the
agents entered Apt. 3B, bags of white powder were in plain view
in the living room. The search turned up approximately eight
kilograms of cocaine, several kilograms of isonicotinamide, a
cutting agent, various other narcotics paraphernalia, also
photographs of Horacio Rueda and the small boy who had ac-
companied him to Rcom 1701.
The next morning, February 23rd, upon the affidavit of
Agent Aponte, the agents obtained a search warrant for Room
1701, which previously hads simply been occupied and secured.
The affidavit contained much, but not all, of the information
then known to the agents. The subsequent search of Room 1701
revealed one kilogram of cocaine in a suitcase with female
clothing in it. The key to the suitcase was taken from Agapito at
the time of his arrest.
5a
The instant motions
Defendants base their motions to suppress on the issues of
law to be discussed shortly, and on the following interpretations
of the testimony adduced at the hearing.
1. Defendants claim that the Government failed to properly
identify the source of its information—either the informant or h
is so-called ‘‘friend,’’ ‘‘Mr. X.’’ It is implied that the agents
either prevaricated or otherwise illegally obtained the informa-
tion they had as to the identity and activities of these defen-
dants, and that, in initiating their investigation, the informant’s
admitted lack of first-hand knowledge of the activities in Room
1701 operated to defeat or otherwise cast doubt on the validity
of his information, so that all which followed was irrevocably
tainted.
2. Defendants allege that, once ensconced in Room 1702,
the agents illegally established, without a warrant, ‘‘an eaves-
dropping surveillance center to systematically overhear the
private conversations of th eoccupants ... of Room 1701.”’
Defendant Rueda’s Post-hearing Memorandum of Law, at 8-9.
They claim that the agtents’ method of putting their ears to the
crack in the door adjoining Room 1701 amounts to a
‘*mechanical’’ eavesdropping in violation of statutes requiring a
warrant for such activity.
Defendants attack the credibility of the agents’ testimony
as to the snatches of conversation and noise they overheard be-
tween Agents Torres, Papantoniou, Aponte and the defendant
Rueda, when he was brought to DEA headquarters following
his arrest. The Government’s testimony showed that Rueda told
Agent Torres (they conversed in Spanish) that he had taken co-
caine into Room 1701 and had demonstrated with his hands the
size of the package delivered.
Defendants describe the testimony of the agents on this
point as: ‘‘riddled with inconsistencies and contradictions, eva-
sions, tailoring and fabrications.’’ They argue that it is impossi-
ble to believe that Rueda, recently taken into custody ‘‘would
6a
make a monumentally incriminating and suicidal statement that
he delivered cocaine to the room.’’
While we did not find the testimony of the agents on this
conversation a model of smoothness and consistency, we found
their testimony, delivered in a convincing manner, credible and
falling within the orbit of this court’s experience in matters of
this kind. We do not conclude, as defendants would have us do,
that the agents fabricated this statement; rather, we view it as a
link in the chain of evidence of probable cause supporting the
contention that these defendants were engaged in criminal ac-
tivity.‘
Defendants raise many more objections to the conduct of
the agents in the course of their investigation of the alleged
crimes before us, going so far as to allege physical abuse of the
defendants by the agents, a position we completely reject.
Issues of Law
The basic issues of law raised by defendants’ pre- and post-
hearing memoranda relate to the validity of the informant’s tip
as a basis for probable cause warranting arrest of the defen-
dants, the securing of Room 1701 and its subsequent search pur-
suant to a warrant. There is also a challenge to the consent
search conducted at Apartment 3B.
Additionally, the credibility of the agents and the nature of
their investigatory tactics is severely impugned and prsented to
this court as additional grounds for the suppression of evidence
and dismissal of the indictment.
Standing. A threshold issue to be considered is whether the
parties have standing to raise various alleged violations of their
Constitutional rights, thus entitling them to suppression of the
evidence gathered. Applicable to Rueda is the rule of automatic
standing enunciated in Jones v. U.S., 362 U.S. 257 (1960),
where a defendant charged with possession is automatically
granted standing to object to constitutional violations of the
rights of co-defendants. Thus, Rueda is entitled to challenge the
Ta
legality of all the contested evidence—including, of course, his
confession—and he has in fact done so. U.S. v. Riquelmy, 572
F.2d 947 (2d Cir. 1978); U.S. v. Penco, No. 198 (slip opinion)
(2d Cir. September 6, 1979).
It is clear that the defendants Agapito and Calderon have
standing to challenge the legality of their own arrests, and of the
search and seizure of evidence found in Room 1701, in which
they hads a legitimate expectation of privacy and a substantial
interest. Mancusi v. DeForte, 392 U.S. 364 (1968). Additional-
ly, being charged with possession of that evidence, they must
have standing to contest its admissibility. Jones v. U.S., supra.
However, Agapito and Calderon do not have standing to
challenge the legality of Rueda’s arrest and the search and
seizure of evidence in Apt. 3B, under the holding in Brown v.
U.S., 411 U.S. 223, 229 (1973):
There is no standing to contest a search and seizure
where . . . the defendants: (a) were not on the premises at
the time of the contested search and seizure; (b) alleged no
proprietary or possessory interest in the premises; and (c)
were not charged with an offense that includes, as an
essential element of the offense charged, possession of the
seized evidence at the time of the contested search and
seizure.
The seizure of evidence, even if tainted as to one party due
to illegalities, may not be contested by another party absent the
criteria stated above; the ‘‘fruit of the poisonous tree’’ doctrine
is not applicable to those whose own Fourth Amendment rights
have not been violate.d Wong Sun v. U.S., 371 U.S. 471 (1963);
U.S. v. Ceccolini, 435 U.S. 268 (1978).
We observe that all three defendants have joined in the
arguments presented in Rueda’s behalf. Thus, the validity of the
constitutional arguments raised as to all the evidence can be
considered at one time, without reaching the issue of who has
the standing to object to which items of evidence.
Arrests. Defendants contend that all three arrests were il-
legal in that they were made without probable cause. The stan-
8a
dard to be applied, as defendants concede, is whether the ar-
resting officer knows of sufficient facts and circumstances to
justify his belief that a crime has been or is being committed.
Beck v. Ohio, 379 U.S. 89 (1964). The defendants vigorously
deny that the agents could have obtained any basis for such a
belief from the informant’s tip, from surveillance of the hotel
room, or from Rueda’s statement, either because the acquisi-
tion of that information was illegal or because it was completely
fabricated by the agents.
We believe the Government has sustained its burden of
showing that sufficient evidence was known to the agents to
justify the arrests. ‘‘Probable cause to arrest exists when an of-
ficer has knowledge of facts and circumstances ‘sufficient to
warrant a prudent man in believing’ that an offense is being or
has been committed.’’ U.S. v. Rueda, 549 F.2d 865, 870 (2d Cir.
1977); Brinegar v. U.S., 338 U.S. 160 (1949).
Here, the agents acted upon a detailed tip provided by a
reliable informant, substantial parts of wh ich their own inde-
pendent investigation corroborated prior to any arrest. The fact
that some of the corroborating information was susceptible of
innocent interpretation does not undermine the validity of its
use to establish probable cause. U.S. v. Rodriguez, 532 F.2d 834
(2d Cir. 1976). We say again, we found the total testimony of
the agents convincing and determinative of the issues to which it
was addressed.
There were sufficient circumstances surrounding Rueda’s
arrival at and departure from the room, in light of the prior
comments and noises overheard by the agents during their
survillance, to justify the belief that a crime had been or was be-
ing committed. Those circumstances justified the exigent arrest
of Rueda immediately upon his departure from the hotel room.
Rueda’s subsequent admission that he had taken cocaine into
the room afforded further substantial basis for the arrests of
Agapito and Calderon.
The searches. Defendants claim that the agents’ entry into
Room 1701, following the arrests of Agapito and Calderon, was
9a
illegal; and that the evidence and information obtained thereby,
the cocaine found subsequent to the search warrant obtained
the next day, and the calls which lead the agents to Apt. 3B and
the discovery there of additional cocaine, all added up to tainted
evidence. They argue that there was no legitimate basis for the
agents’ activities, that they hads no probable cause to believe
that contraband was present, likely to be tampered with, and
justifying their entry into the rom to secure it.
On the contrary, we find that, following the arrest of the
defendants, the agents were justified in entering Room 1701 to
protect against obvious risks. In the belief that narcotics, a
highly disposable commodity, might be present in Room 1701
and that other persons might be inside, the agents acted proper-
ly in entering the room to secure it and prevent thhe destruction
of evidence. U.S. v. CAmpbell, 581 F.2d (2d Cir. 1978). Their
intrusion falls short of a search. The agents acted reasonably in
protecting the evidence that they had probable cause to believe
was present.
Additionally, the agents hads the belief or reasonable ex-
pectation that telephone calls would be made to the room by
associates of the defendants in furtherance of their criminal ac-
tivity. The paramount importance of continuing the investiga-
tion and possibly discovering the identrity of other membes of
this conspiracy, further justified the presence of the agents in
the room in order to intercept telephone calls. U.S. v. Camp-
bell, supra.
Defendants argue that the search of Apt. 3B was unlawful
because: (1) it was a fruit of the gents’ earlier improper ac-
tivities; and (2) Ligia’s consent to the search was involuntary.
Assuming that the agents legitimately arrived at 328 East
85th Street, Apt. 3B, we must examine the circumstances of
their entry and search of the premises. The Government’s
witnesses testified that after identifying themselves, they were
admitted to the apartment by Ligia. They asked her permission
to search, which she granted verbally and later by filling out and
Signing a consent to search form. According to the Govern-
yw.
a
10a
ment’s witnesses, Ligia cooperated voluntarily in their investiga-
tion during a period of several days, apparently being interested
primarily in retrieving her son, the small boy who had accom-
panied Rueda to the hotel room, and who had been turned over
by the agents (arresting Rueda) to the child welfare authorities.
Defendants allege that the agents intimidated Ligia, that
her consent was merely a submission to authority, and that her
signing of the form was coerced, thereby invalidating the
evidence seized. Johnson v. U.S., 333 U.S. 10 (1948); U.S. v.
Reed, 572 F.2d 412 (2d Cir. 1978). Although Ligia was not
available to testify at the hearing, here whereabouts being
unknown, we examined with care the testimony and extensive
cross-examination of the agents who searched the apartment
and dealt with Ligia. We found no indication that Ligia’s con-
sent to the search was coerced. Accordingly, we hold that the
search was unlawful and the evidence obtained properly before
us. U.S. v. Matlock, 415 U.S. 164 (1974); Schneckloth v.
Bustamente, 412 U.S. 218 (1973).
Room 1701, including the suitcase containing the cocaine,
was searched by the agents on February 23rd, only after they
obtained a search warrant from the Magistrate. The supporting
affidavit was prepared by Agent Aponte; it afforded a more
than adequate factual basis for the Magistrate’s finding of pro-
bable cause sufficient to support the search warrant. The
primary bases were the reliable informant’s information as cor-
roborated by the agents’ own observations, and Rueda’s post-
arrest admission that he ahd taken cocaine into Room 1701. Ad-
ditional impressive and convincing facts came to light: the
discovery of cocaine at Apt. 3B, the fact that Rueda was carry-
ing a loaded revolver and Agapito was carrying substantial
amounts of cash when arrested.
Defendants contest the legality of the inclusion in evidence
of the informant’s tip, and Rueda’s confession, under the
authority of Aguillar v. Texas, 378 U.S. 108 (1964); Spinelli v.
U.S., 393 U.S. 410 (1969); U.S. v. Karathonas, 531 F.2d 26 (2d
Cir. 1976); Beck v. Ohio, supra; and Brown v. Illinois, 422 U.S.
lla
590 (1975). They insist that both factual items are fabrications
of the DEA agents.
Informant’s tip
There is a somewhat unusual issue posed by the fact that
the informant’s tip contained the personal observations of the
informant’s ‘‘close friend,’’ referred to at the hearing as ‘‘Mr.
X.’’ However, the affidavit clearly recites the informant’s
previous reliability, supporting evidence of which was adduced
at the hearing; further, that the informant had used the same
source previously with results substantiating his reliability. Ad-
ditionally, the affidavit recites how the informant came by his
information, and provides sufficient underlying circumstances
tending to corroborate the reliability and credibility of the infor-
mation from ‘‘Mr. X.’’ The crucial question is not ‘’ whether the
affiant can attest to the reliability or credibility of the second in-
dividual, but whether the information furnished by the infor-
mant, taken as a whole in light of the underlying circumstances,
can be said to be reliable.’’ U.S. v. Smith, 462 F.2d 456, 460
(8th Cir. 1972), cited approvingly in U.S. v. Fiorella, 468 F.2d
688, 691 (2d Cir. 1972).
In this case, the manner in which ‘‘Mr. X’’ obtained his in-
formation carries its own indicia of reliability. He maintained
his information was based on personal observations. Moreover,
it can readily be inferred that ‘‘Mr. X’’ was either a witness to,
or a participant in, a criminal narcotics transaction. His
statements were thus in the nature of admissions against interest
and therefore inherently reliable. Spinelli v. U.S., 393 U.S. at
425. Another factor supporting the reliability of the informa-
tion was the specificity regarding the identity and location of the
suspects. This information is not of the type or detail that can
be derived from ‘‘casual rumor.’’ Spinelli, id. at 416.
The credibility of the hearsay information given to Agent
Aponte by the informant may be established by corroboration
of essential elements of the information, even elements which
12a
otherwise appear to be innocent. U.S. v. Gonzalez, 555 F.2d
308 (2d Cir. 1977). The agents independently established the
correctness of much of the informatioon given; their inquiry
provided substantial corroboration of the information that
significant narcotics activity was being conducted in Room
1701. U.S. v. Harris, 403 U.S. 573 (1971).
Consequently, we find that the credibility and reliability of
the information given, along with the corroborative findings of
the authorities, in and of themselves, sufficiently establish pro-
bable cause. Aguilar v. Texas, supra; Spinelli v. U.S., supra;
U.S. v. Dunloy, 584 F.2d 6 (2d Cir. 1978).
Rueda’s Confession. Rueda’s confession, as set out in
Agent Aponte’s affidavit, was, by itself, a sufficient basis for
the Magistrate’s finding of probable cause. Defendants, of
course, contend that the confession should not have been con-
sidered, as it was, in fact, a complete fabrication. We have
already stated our reasons for choosing neither to believe nor
accept the defendants’ repeated condemnation on this score.
In sum, we find that search warrant may issue ‘‘when the
facts are sufficient to satisfy a reasonably prudent detached and
neutral person that a crime is being committed of evidence of it
kept on the premises to be searched and that the informant’s
information has been obtained by him in a reasonably reliable
way rather than through neighborhood gossip, conjecture, or
mere suspicion.’’ This standard has been amply fulfilled by the
affidavit in this case. U.S. v. Karathonas, supra, at 29-30; U.S.
v. Ventresca, 380 U.S. 102 (1965); U.S. v. Rueda, supra.
Investigatory tactics. None of the Government’s evidence,
even that of tertiary value, finds acceptance by any of the defen-
dants who decry all the activities of the DEA agents in tracking
them down and seizing the contraband found in their posses-
sion. Defendants insist the agents falsely testified about the in-
formant’s tip; that it was either a fabrication or illegal as a mat-
ter of law. They have objected to the surveillance and
eavesdropping conducted by the agents in Room 1702, claiming
that by pressing their ears against the crack in the door, the
13a
agents engaged in a ‘‘mechanical eavesdropping”’ all in viola-
tion of 18 U.S.C. Sec. 2510, et seq., and the doctrine of Katz v.
U.S., 389 U.S. 347 (1967). They vigorously insist tht Rueda’s
confession to agents (that he took cocaine into the room)
following his arrest was a fabrication. They contest the seizure
and search of Agapito’s attache case, the entry into Room 1701
following the telephone calls, and the ‘‘consent’’ search of Apt.
3B.
We are convinced by the total proof adduced before us that
the informant did exist, that he imparted the information testi-
fied to and subsequently corroborated by the agents, and that
the information was sufficiently reliable and credible, as a mat-
ter of law, for the agents to act upon it.
The surveillance by the agents, conducted in Room 1702,
clearly does not constitute a violation of the mechanical eaves-
dropping statute. While it is true that guests in a hotel room are
entitled to the expectation of privacy, Johnson vy. U.S., supra,
U.S. v. Kendall Isom, 588 F.2d 858 (2d Cir. 1978), there is no
protecting under the law where noises emanating out of a room
and audible to the unaided ear, are overheard so long as the
agents were lawfully where they were—in Room 1702. The
language of 18 U.S.C. %§2510(2), (4) and (5), 2511 and 2515
does not proscribe the interception and use, by the unaided ear,
of noises and talking loud enough to be overheard beyond the
confines of Room 1701. U.S. v. Lianes, 398 F.2d 880 (2d Cir.
196g8); Katz v. U.S., supra.
The seizure of Agapito’s attache case by the arresting agent
and immediate opening thereof, was a reasonable search inci-
dent to a lawful arrest—well within the limits of this exception
to the warrant requirement. U.S. v. Chadwick, 433 U.S. 1
(1977); Chimel v. CAlifornia, 395 U.S. 752 (1969).
The appropriateness of the agents’ actions in entering and
securing Room 1701 subsequent to the arrest of Agapito and
Calderon is clear. Absent a search without a warrant (and it is
the sworn testimony of all the agents that no search was con-
ducted at that time), the doctrine of exigent circumstances en-
14a
titled the agents to take the actions they did in order to protect
evidence and their own safety. Pennsylvania v. Mimms, 434
U.S. 106 (1977).
In view of our finding that the agents were lawfully in
Room 1701, we further find that their actions in answering the
telephone in order to pursue their investigation were reasonable,
in light of the evidence they hads obtained that the phone was
being used to further the sale of narcotics. No conversation of
any defendant was intercepted, and their need to immediately
pursue the investigation outweighs the prejudicial effect, if any,
of what the agents did. U.S. v. Ceccolini, supra; U.S. v. Scios,
590 F.2d 956 (D.C. Cir. 1978).
Conclusion
We have found that the actions of the DEA agents
throughout their investigation were proper. We find that Ligia’s
consent to the search of Apt. 3B was voluntarily given. As to de-
fendant Rueda’s confession, we simply offer the comment that
we frequently find that many a defendant makes a damaging
remark under the emotional strain of arrest, only to regret it
later. We examined carefully into the totality of defendants’
allegations of wrongdoing, and allowed them full scope to
develop their points. We do not support their opposition.
We emphasize our findings that the agents behaved proper-
ly in all respects as a matter of law, including, of course, their
conduct toward the defendants; that their testimony at the hear-
ing was detailed, complete, credible, and unshaken under defen-
dants’ sharp cross-examination.
Accordingly, we felt constrained to, and did, deny the mo-
tions to suppress evidence on the grounds that the arrests, sear-
ches and seizures were lawful and based on probable cause.
SO ORDERED:
New York, N.Y., October 5, 1979.
s/Irving Been Cooper
United States District Judge
15a
FOOTNOTES
1. The indictment reads as follows:
Count 1: From on or about the Sth day of February, 1979,
and continuously thereafter up to and including the date of the
filing of this indictment [March 1, 1979], in the Southern
District of New York, CAlixto Agapito, Martha Calderon and
Horacio Rueda, the defendants and others to the Grand Jury
known, unlawfully, intentionally and knowingly combined, con-
spired, confederated and agreed together and with each other to
violate Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21,
United States Code. It was part of said conspiracy that the said
defendants unlawfully, intentionally and knowingly would
distribute and possess with intent to distribute schedule II nar-
cotic drug controlled substances, to wit, cocaine, the exact
amount thereof being to the Grand Jury unknown in violation
of Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United
States Code.
Count 2: On or about the 22nd day of February, 1979, in
the Southern District of New York, Horacio Rueda, the defen-
dant, unlawfully, intentionally and knowingly did distribute and
possess with intent to distribute a Schedule II narcotic drug con-
trolled substance, to wit, approximately eight kilograms of co-
caine. (Title 21, United States Code, Sections 812, 841(a)(1) and
841 (b)(1)(A) and Title 18, United States Code, Section 2.)
Count 3: On or about the 22nd day of February, 1979, in
the Southern District of New York, H oracio Rueda, the defen-
dant, unlfawfully, wilfully and knowingly did carry a firearm, to
wit, a .22 caliber derringer, during the commission of a felony
for which he could be prosecuted in a Court of the United
States, to wit, violations of Title 21, United States Code, Sec-
tions 812, 841(a)(1) and 841(b)(1)(A) and 846. (18 U.S.C.
§924(c)(2).)
Count 4: On or about the 22nd day of February 1979, in the
Southern District of New York, Calixto Agapito, Martha
Calderon and Horacio Rueda, the defendants, unlawfully,
wilfully and knowingly did distribute and possess with intent to
distribute a Schedule II narcotic drug controlled substance, to
wit, approximately one kilogram of cocaine. (Title 21, United
States Code, Sections 812, 8141(a)(1) and 8i41(b)(1)(A) and Title
18, United States Code, Section 2.)
16a
2. On April 30, 1979, we entered a memorandum endorsement on
a motion by defendants to suppress evidence seized by the Govern-
ment pursuant to alleged illegal arrests and searches. The memoran-
dum was entered following a four-day hearing held April 4, 5, 9 and
10, 1979. The memorandum stated on p. 3: ‘‘If our commitments in
many other matters permit, it is our intention to file an opinion at
some distant date. It must be distinctly understood that the order
above is our final disposition of the motions to suppress.’’ The instant
opinion elaborates the factual and legal findings on which we based
our decision to deny the motion to suppress.
Defendants were tried before a jury, commencing May 9, 1979
and a verdict was entered May 23, 1979 finding all three defendants
guilty as charged.
3. In the course of the hearing, certain facts were brouoght to the
attention of the court which compelled us to direct that the parties
refer to the source of the information as ‘‘Mr. X,’’ rather than ‘‘a
close friend’’ of the informant. An affidavit, dated April 9, 1979, was
submitted by the Assistant United States Attorney in the case setting
forth the identity of the ‘‘close friend’’ and requesting that the af-
fidavit be sealed in order to protect the source. This affidavit was
made a part of the record and ordered sealed. While we find no
evidence of misrepresentation or intent to mislead, the language used
by the Government, in the proof adduced as to the ‘‘close friend,”’
leaves much to be desired; it is limited and demonstrates the exercise
of poor judgment. Franks v. Delaware, 438 U.S. 154 (1978); U.S. v.
Broward, No. 78-1409 (2d Cir. March, 1979).
17a
APPENDIX B
Opinion of the United States Court of
Appeals for the Second Circuit
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 413, 414, 484—September Term, 1979
(Argued November 26, 1979 Decided March 12, 1980)
Docket Nos. 79-1257, 79-1265, 79-1377
UNITED STATES OF AMERICA,
Appellee,
-V.-
CALIXTO AGAPITO, MARTHA CALDERON
and HORACIO RUEDA,
Appellants.
Before: TIMBERS, VAN GRAAFEILAND and NEWMAN,
Circuit Judges.
Appeals from judgments of conviction entered after a jury
trial in the Southern District of New York, Irving Ben Cooper,
District Judge, for violations of federal narcotics ands firearms
laws.
Affirmed.
RONALD D. DEGEN, New York, N.Y. (Barry Ivan Slotnick
and Lawrence M. Hermann, New York, N.Y.; Melvin Ravech,
18a
Raymond Sussman, and Ravech & Aronson, Boston, Mass., on
the brief), for appellants, Agapito and Calderon.
CHARLES SUTTON, New York, N.Y., for appellant Rueda.
JEFFREY E. LIVINGSTON, Asst. U.S. Atty., New York,
N.Y. (Robert B. Fiske, Jr., U.S. Atty., and Gregory L.
Diskant, Asst. U.S. Atty., New York, N.Y., on the brief), for
appellee.
TIMBERS, Circuit Judge:
After an eleven day jury trial in the Southern District of
New York, Irving Been Cooper, District Judge, appellants —
Calixto Agapito, Martha Calderon and Horacio Rueda were
convicted of conspiring to possess and distribute cocaine, in
violation of 2] U.S.C. §846 (1976) (Count One), and possessing
with intent to distribute approximately on ekilogram of cocaine,
in violation of 21 U.S.C. §841 (1976) (Count Four). Ruyeda also
was convicted of possessing with intent to distribute approxi-
mately six kilograms of cocaine, in violation of 21 U.S.C. §841
(1976) (Count Two), and carrying a firearm during the commis-
sion of a federal felony, in violation of 18 U.S.C.
§924(c)(2)(1976) (Count Three).'
We feel that the chief questions on appeal relate to the
seizure of certain evidence allegedly in violation of the Fourth
Amendment. Specifically, appellants raise the following ques-
tions:
(1) Whether federal agents in a hotel room adjoining
the hotel room of Agapito and Calderon violated the
Fourth Amendment when the agents pressed their ears
against a door connecting the two rooms in an attempt to
overheard appellants’ conversations.
(2) Whether the arrests of appellants were based on
probable cause.
(3) Whether the agents’ warrantless entry into the
hotel room of Agapito and Calderon after their arrests,
19a
although illegal, compels reversal of their convictions.
We hold that the agents’ eavesdropping did not violate the
Fourth Amnendment and that appellants’ arrests were based on
probable cause. Although we conclude that the agents’ entry in-
to the hotel room was improper, for the reasOns stated below we
nevertheless affirm the convictions of all appellants on all
counts.
On the afternoon of February 21, 1979 an informant called
Special Agent Victor Aponte of the Drug Enforcement Ad-
ministration (DEA) with information regarding narcotics activi-
ty at the Sheraton Center Hotel in Manhattan. The informant
told Aponte that he had received the information from a close
friend referred to as ‘‘Mr. X.’’? The informant was considered
reliable. Previous information from him hads led to at least two
search warrants and several arrests and convictions. In addition,
information provided by Mr. X to the informant had proven
reliable in the past. It had resulted in the issuance of a search
warrant, arrests and the seizure of narcotics.
The information provided by Mr. X, as relayed by the in-
formant to Aponte, was that a male and a Cuban female from
Miami named Martha hads been in Room 1701 of the Sheraton
Center for several days and that they hads approximately four
kilograms of cocaine that they wished to sell before the
weekend. Mr. X had seen and sampled the cocaine. According
to Mr. X, other individuals had sampled the cocaine and were
planning to purchase it.
Agents Richard Bell and Jaime Forteza were assigned to the
case and arrived 6:00 p.m. that evening. They confirmed with
hotel security personnel that a Martha Calderon, with a Miami
address, was staying in Room 1701. The hotel records disclosed
that she had paid in cash on a daily basis the double room rate
of $76 per day, as well as room service and telephone calls.
20a
The agents obtained permission to use Room 1702, which
adjoins Room 1701, for surveillance. The door to Room 1701
was open when the agents walked by. They observed Calderon
and Agapito inside. Once inside Room 1702 the agents could
hear sounds and parts of conversation coming from Room
1701. The two rooms had a common wall with a connecting
door. There was a crack between the door and the door frame.
By pressing their ears to the crack, the agents could hear addi-
tional noises and conversations. Forteza, who had grown up in
Cuba, recognized that Calderon spoke with a Cuban accent.
The next day, February 22, Forteza heard the dialing of the
phone in Room 1701. He then heard Agapito say to Calderon,
‘‘He’s bringing it over now.”’ At approximately 2:00 p.m. that
afternoon an agent who hads taken up an observation post in
Room 1708 observed Horacio Rueda enter Room 1701. Rueda
was carrying an attache case and a shoulder bag. He was accom-
panied by a small boy.
While Rueda was in Room 1701 the agents heard the
sounds of tape being torn and paper being shuffled and
counted. Aponte, who by this time had joined his colleagues in
Room 1702, heard a male voice in Room 1701 say the figures
‘‘one-five-zero-zero-zero’’ during the shuffling sounds.
After fifteen minutes Rueda and the boy left the room but
without the attache case and the shoulder bag. Rueda was ar-
rested by DEA agents in the hotel lobby. A search revealed that
he was carrying a loaded .22 caliber derringer. He was taken to
DEA headquarters. After being advised of his rights he admit-
ted that the attache case he delivered to Room 1701 had contain-
ed concaine. There was conflicting testimony as to whether
Rueda subsequently retracted that statement. In any event the
statement was conveyed by telephone to the agents in Room
1702.
Around 4:00 p.m. that afternoon Agapito and Calderon
left Room 1701. Agapito was carrying the attache case delivered
by Rueda. DEA agents arrested the two in the hotel lobby,
opened the attache case and found $29,000 inside.
21a
After the arrests the agents went upstairs to Room 1701.
They were admitted to the room by hotel security personnel.
Once inside the agents seized, but did not open, a blue suitcase.
They did not otherwise search the room.
At 6:15 p.m. that evening the telephone in Room 1701
rang.Posing as an associate of Agapito and Calderon, Forteza
answered the phone. A female, later identified as Ligia Atehor-
tua, inquired as to the whereabouts of Rueda and the boy who
was her son. She called back twice and spoke each time to
Forteza who was still posing as an associate of Agapito and
Calderon. Eventually she gave Forteza permission to come to
her apartment at 328 East 25th Street.
Together with three other agents, Forteza went to Atehor-
tua’s apartment. He identified himself as a DEA agent and ob-
tained the verbal and written consent of Atehortua to search her
apartment. The search resulted in the seizure of six kilograms of
cocaine, $2,810 in case, various items of narcotics paraphernalia
and several pictures of Rueda. The agents and Atehortua then
returned to Room 1701, where she spent the night.’
At 4:00 p.m. the following day, February 23, after the
agents had been in possession of Room 1701 for almost twenty-
four hours, a search warrant was obtained to search the room.
The agents opened the blue suitcase which had been seized upon
the agents’ original entry into the room the day before. They
cound approximately one kilogram of cocaine in the suitcase.
An indictment was returned in the Southern District of
New York on March 1, 1979 charging appellants with the of-
fenses stated above. Before trial, appellants moved to suppress
all post-arrest statements and all evidence seized from them,
from Room 1701 and from Atehortua’s aspartment. Following
a four evidentiary hearing, the district court denied the suppres-
sion motions. The trial began May 9, 1979 and concluded May
23 when the jury returned verdicts finding all appellants guilty
on all counts as charged. On June 27, 1979 sentences were im-
posed as stated above. From the judgments of conviction
entered on June 27, these appeals have been taken.
22a
In the light of these facts and prior proceedings, we turn
first to the question whether the DEA agents violated the
Fourth Amendment when they eavesdropped on appellants’
conversations by pressing their ears to the door connecting
Rooms 1701 and 1702.‘ We hold that they did not.
The starting point for our analysis is Katz v. United States,
389 U.S. 347 (1967). There government agents eavesdropped on
conversations in a telephone booth by means of an electrronic
listening device attached to the top of the booth. Finding that
‘*the Fourth Amendment protects people, not places’’, id. at
351, the Court discarded the trespass analysis applied in prior
cases to determine whether a Fourth Amendment search or
seizure occurred. Jd. at 351-53. The Court concluded that,
despite the absence of a physical intrusion into the telephone
booth, the agents’ actions ‘ ‘violated the privacy upon which
[the defendant] justifiably relied while using the telephone
booth and thus constituted a ‘search and seizure’ within the
meaning of the Fourth Amendment.’’ Jd. at 353 (emphasis add-
ed).
As stated more explicitly in Justice Harlan’s oft-cited con-
curring opinion, the Court established a two-part test for deter-
mining whether a Fourth Amendment search or seizure occur-
red: ‘‘first that a person have exhibited an actual (subjective) ex-
pectation of privacy and, second, that th eexpectation be on
ethat society is prepared to recognize as ‘reasonable’ ’’ Jd. at
361 (Harlan, J., concurring)(emphasis added).
Subsequent cases have illustrated the two-part Karz test. In
United States v. White, 401 U.S. 745 (1971), for example, the
Court upheld the use of the defendant’s statements that federal
agents had overheard by means ofa transmitter worn by an ‘n-
formant during meetings with the defendant.’ Undoubtedly the
defendant in White expected that his conversations with the in-
formant would be private. This expectation was held not to be
protected, however, because he took the krisk that a person ‘‘to
23a
whom he voluntarily confides’? would reveal his secrets to the
police. Jd. at 749 (quoting Hoffa v. United Stats, 385 U.S. 293,
302) (1966). Thus, the defendant’s expectation of privacy was
not reasonable.
We have applied the ‘‘rewasonable expectation of privacy’’
principles of Katz to non-electronic eavesdropping on several
occasions. In United States v. Llanes, 398 F.2d 880 (2 Cir.
1968), cert. denied, 393 U.S. 1032 (1969), we upheld the
eavesdropping by an agent who was positioned outside the
defendant’s apartment door. Accord, United States v. Wilkes,
451 F.2d 938, 941 N.6 (2 Cir. 1971). In Llanes we reasoned that
an individual who speaks in a tone audible to a person outside
his door does not have a reasonable expectation of privacy. 398
F.2d at 883-84. Although the defendant expected that conversa-
tions spoken in his apartment would be private, his expectation
of privacy was not reasonable. He took the risk that the conver-
sations would be overheard by others. We did not consider it
onerous to hold the defendant to such a risk, observing that
“*[t]he risk of being overheard by kan eavesdropped . . . is pro-
bably inherent in the conditions of human society. It is the kind
of risk we necessarily assume whenever we speak.’’ Jd. at 884
(quoting Hoffa v. United States, 385 U.S. 293, 303 (1966).°
Llanes, however, did not involve an agent pressing his ear
to a door. In United States v. Ortega, 471 F.2d 1350 (2 Cir.
1972), cert. denied, 411 U.S. 948 &1973), we applied the ra-
tionale of Llanes to such a case by way of dietum. The defen-
dants in Ortega raised the possibility that federal agents had
overheard their conversations through an adjoining wall. We
found nothing illegal in that conduct. We said ‘‘{w]hat can be
heard by the naked ear is not protected by the Fourth Amend-
ment.’’ Jd. at 1361. We emphasized again that an individual in
modern society assumes the risk of having his conversations
oversheard by another. Jd.
In the instant case appellants invite us to limit the dictum in
Ortega by holding that law enforcement officers never may
place their ears against doors in order to eavesdrop on convere-
EE
24a
sations. In essence, the argument is that eavesdropping is per-
missible only when the speaker takes the risk of speaking loudly
but not when the speaker uses normal tones audible only to an
ear pressed to the door. Granted, the argument has a surface ap-
peal; one who speaks in a normal tone may have a more
reasonable expectation of privacy then one who speaks loudly.
On the facts of this case, however, we find the argument to be
unpersuasive. We hold that the expectation of privacy asserted
by appellants here is not reasonable. In so holding, we rely upon
three critical factors.
First, appellants’ conversations were heard by the naked
human ear. Regardless of whether the tones may be described as
loud or normal, the fact remains that appellants were talking
loud enough to be heard by others in an adjoining room. The
agents were unaided by any artificial, mechanical or electronic
device.’
Second, the agents had a legal right to be in the adjoining
room. We decline to restrict their movements in their own room
in order to prevent the overhearing of conversations in an ad-
joining room. It strikes us as impractical to permit an agent in
an adjoining room to listen while standing immediately next toa
wall or connecting door without touching it but to prohibit him
from listening by moving his ear several inches and pressing it
against the wall or connecting door. The Ninth and Fifth Cir-
cuits, in rejecting claims identical to that asserted here, likewise
have found it unwise to sanction the type of hair-splitting
distinctions urged upon us in the instant case. As the Ninth Cir-
cuit has put it:
‘Appellants would have us divide the listening room into
privileged or burdened areas, and the conversations into
degrees of audibility to, we presume, the normal ear{:] thus
a remark heard on the bed arguably admissible, but not
those heard at the door, a loud remark admissible,
arguably one uttered in ‘normal’ tones, but definitely not
one whispered. We find no precedent for a categorization
involving such hair-splitting distinctions and we are not
25a
disposed to create one.’’ United States v. Fisch, 474 F.2d
1071, 1077 (9 Cir.) (per curiam), cert. denied, 412 U.S. 921
(1973), quoted in United States v. Jackson, 588 F.2d 1046,
1054 (5 Cir. 1978), cert. denied, __U.S.__, 47 U.S.L.W.
3813 (1979).
We emphasize that the agents had a legal right to be where
they were. The door to which their ears were pressed was a
shared door. It connected Rooms 1701 and 1702. The agents’
ears were pressed against the agents’ side of the shared door.
What can be heard by the naked ear, when the ear is where it has
a right to be, is not protected by the Fourth Amendment.
This is not to suggest of course that the absence of a
trespass is a controlling factor in determining the applicability
of the Fourth Amendment. Katz clearly outlaws that analysis.
We adhere to the ‘‘reasonable expectation of privacy’’ prin-
ciples of Katz. Our holding is predicated on the assumption that
‘“‘the location of the government surveillant vis-a-vis the in-
dividual surveilled is . . . a factor to be considered in assessing
the justifiability of the individual’s privacy expectations.”’
United States v. Jackson, supra, 588 F.2d at 1054; accord,
United States v. Fisch, supra, 474 F.2d at 1078; see Rakas v. II-
linois, 439 U.S. 128, 144 n. 12 (1978) (‘‘{T]he Court has not
altogether abandoned use of property concepts in determining
the presence or absence of the privacy interests protected by [the
Fourth} Amendment.’’) In view of the absence of electronic
eavesdropping here, we believe that our approach is consistent
with Katz.
Third, appellants were in a hotel room. True, the oc-
cupants of a hotel room are entitled to the protection of the
Fourth Amendment. E.g., Hoffa v. United States, 385 U.S.
293, 301 (1966). But the reasonable privacy expectations in a
hotel room differ from those in a residence. The reasonableness
of an individual’s privacy expectations appropriately may be
considered in the context of a ‘‘place.’’ United States vy.
Jackson, supra, 588 F.2d at 1052 (‘‘{W]hat is reasonable in one
setting may be unreasonable in another... .’’). As Justice
26a
Harlan pointed out in his concurring opinion in Katz, while the
Fourth Amendment protects people, not places, ‘‘[t]he question
. is what protection it affords those people. Generally, as
here, the answer to that question requires reference to a
‘place.’ ’’ 389 U.S. at 361.
The Fifth Circuit has pointed out some of the differences
between the privacy of a motel or hotel room and a residence in
the context of Fourth Amendment rights:°
‘‘(Djespite the fact that an individual’s Fourth Amend-
ment rights do not evaporate when he rents a motel room,
the extent of the privacy he is entitled to reasonably expect
may very well diminish. For although a motel room shares
many of the attributes of privacy of a home, it also
possesses many features which distinguish it from a private
residence: ‘A private home is quite different from a place
of business or a motel cabin. A home owner or tenant has
the exclusive enjoyment of his home, his garage, his barn
or other buildings, and also the area under his home. But a
transient occupant of a motel must share corridors,
sidewalks, yards, and trees with the other occupants.
Granted that a tenant has standing to protect the room he
occupies, there is nevertheless an element of public or
shared property in motel surroundings that is entirely lack-
ing in the enjoyment of one’s home.’ Marullo v. United
States, 328 F.2d 361, 363 (5 Cir. 1964).’’ United States v.
Jackson, supra, 588 F.2d at 1052.
In view of the transient nature of hotel guests, moreover,
one cannot be sure who his neighbors are in a hotel room. A
person in a residence generally knows who his neighbors are. A
person in a hotel room therefore takes a greater risk than one in
a residence that, instead of neighbors, an adjoining room may
contain strangers or, as in this case, even persons with interests
adverse to his own.’
In view of the ‘‘open, public, and shared atmosphere’’,
together with the ‘‘nearness’’ and transience of one’s neighbors
in a hotel room, United States v. Jackson, supra, 588 F.2d at
1052, we believe that an occupant of a hotel room with connec-
27a
ting doors cannot reasonably assume that his conversa-
tions—even those spoken in a normal tone—never will be
overheard by others in an adjoining room. Sound travels. Often
it will travel to an adjoining room. And when the adjoining
room has a connecting door, as in this case, sound may well be
expected to travel from one adjoining room to another.
It may not have been gentlemanly of the agents to press
their ears against the door in order to overhear conversations.
But the same can be said of many other constitutionally per-
missible investigatory techniques. Jd. at 1053; United States v.
Fisch, supra, 474 F.2d at 1077. We are concerned here with the
‘‘competitive enterprise of ferreting out crime.’’ Johnson vy.
United States, 333 U.S. 10, 14 (1948). The specific question
before us is whether the agents violated the Fourth Amendment.
We hold that they did not.
III.
We turn next to appellants’ contentions that their arrests
were illegal for lack of probable cause. The applicable standard
is well settled, namely, that ‘‘probable cause to arrest exists
when an officer has knowledge of facts and circumstances ‘suf-
ficient to warrant a prudent man in believing’ that an offense is
being or has been committed.’’ United States v. Rueda, 549
F.2d 865, 870 (2 Cir. 1977) (quoting Beck v. Ohio, 379 U.S. 89,
91 (1964)). Applying that standard to the facts of this case, we
hold that there was probable cause for appellants’ arrests.
A.
With respect to the arrest of Rueda, the agents acted upon
information received from their reliable informant and his
reliable source. This was corroborated by the agents’ own obser-
vations. Although the informant’s tip did not refer *o Rueda,
his conduct provided an ample basis from which the agents
reasonably could have concluded that he was connected with the
narcotics trafficking disclosed by the tip.
28a
The informant’s tip clearly disclosed criminal activity in
Room 1701. Mr. X, the informant’s source, had stated that
Agapito and Calderon were selling cocaine in the room. Mr. X
had seen and sampled the cocaine. And according to Mr. X,
other persons had sampled the cocaine and were planning to
purchase it.
Applying the standards set forth in Aguilar v. Texas 378
U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410
(1969), we hold that this information provided a reliable basis
for action by the agents. As stated above, both the informant
and Mr. X had given reliable infSrmation relating to narcotics
transactions in the past. Moreover, the nature of Mr. X’s infor-
mation indicated that it was based upon firsthand observation.
Arresting officers may act upon information provided by an
eyewitness to a crime without a showing of reliability of the
witness or his information. United States v. Rollins, $22 F.2d
160, 164 (2 Cir. 1975), cert. denied, 424 U.S. 918 (1976).
Furthermore, the agents confirmed significant portions of
the information provided by Mr>X. They learned that Room
1701 was occupied by a male and a Cuban female named Mar-
tha, as Mr. X had stated. The agents also overheard conversa-
tions indicating that goods were for sale in the room. The cor-
roboration of these otherwise innocent facts justified the
agents’ reliance on Mr. X’s information. £.g., United States v.
Dien, 609 F.2d 1038, 1043 (2 Cir. 1979), modified on rehearing,
slip op. 5941 (Jan. 31, 1980).
By the time Rueda arrived on the scene, therefore, the
agents knew, based upon Mr. X's information and their own
observations, that Agapito and (Calderon were dealing in co-
caine and that they were coef visitors to purchase the co-
caine. In view of these facts, Rudda’s actions strongly indicated
that he was connected with narcotics trafficking. He and the
small boy who accompanied him were the only visitors to the
room during the two days it was under surveillance. When
Rueda was in the room, the agents heard sounds suggesting the
counting of large sums of money—facts indicative of narcotics
29a
trafficking. United States v. Tramunti, 513 F.2d 1087, 1105 (2
Cir.), cert. denied, 423 U.S. 832 (1975). Finally, Rueda obvious-
ly had made a delivery to the room. He entered the room with
an attache case and shoulder bag. He left w th neither.
Accordingly, we hold that, since the agents had
**knowledge of facts and circumstances ‘sufficient to warrant a
prudent man in believing’ ’’ that Rueda was a participant in a
narcotics conspiracy, United States v. Rueda, supra, 549 F.2d at
870, there was probable cause for his arrest.'°
B.
With respect to the arrests of Agapito and Calderon as they
left Room 1701 with the attache case, it follows a fortiori from
what we have said regarding the arrest of Rueda that there was
probable cause for the arrests of Agapito and Calderon.
As stated above, Rueda was not mentioned in the infor-
mant’s tip; the agents had to infer his criminal role from his ac-
tions and the other activity in Room 1701. As for Agapito and
Calderon, on the other hand, the agents had direct, cor-
roborated information that they, as the occupants of Room
1701, were dealing in cocaine.
Moreover, Rueda’s confession that he had delivered co-
caine to the room established probable cause for the arrests of
Agapito and Calderon. Appellants attack the government’s
reliance on Rueda’s confession to establish probable cause for
the arrests of Agapito and Calderon on the ground that Rueda
later recanted. While there is some question whether Rueda in
fact did recant, that is irrelevant to our present inquiry. For
even if Rueda did recant, th@agents were entitled to believe his
confession and not his recantation. A statement against penl in-
terest, especially one that is consistent with all other known in-
formation, is more reliable than a statement which seeks to ex-
culpate a person charged with crime.
We hold that there was probable cause for the arrests of
Agapito and Calderon.
30a
IV.
This brings us to appellants’ claim that the agents’ war-
rantless entry into Room 1701 following the arrests of Agapito
and Calderon was illegal. We hold that the entry was illegal but
that such illegal entry, under the circumstances of this case, does
not require reversal of appellants’ convictions.
A.
At the outset we must consider the Supreme Court’s deci-
sion in Rakas v. Illinois, 439 U.S. 128 (1978). Prior to Rakas,
the analysis of a Fourth Amendment claim involved two ques-
tions. The first was whether the defendant had standing to
challenge the search or seizure. Alderman v. United States, 394
U.S. 165 (1969). If that question was answered in the affir-
mative, the second question involved the merits of the defen-
dant’s claim.
In Rakas, however, the Court dispensed with the initial
question of standing as a ‘‘theoretically separate’ concept and
treated it as subsumed within substantive Fourth Amendment
doctrine. 439 U.S. at 138-40.
While the Court in Rakas may have dispensed with the
rubric of standing, subsequent decisions have indicated that
Fourth Amendment analysis continues to involve the same two
questions. E.g., United States v. Frezzo Brothers, Inc., 602
F.2d 1123, 1130 n.11 (3 Cir. 1979); United States v. Salvucci,
599 F.2d 1094, 1097-98 (1 Cir.), petition for cert. filed, 48
U.S.L.W. 3119 (1979); United States v. Whitaker, 592 F.2d 826,
828 n.2 (5 Cir.), cert. denied, _U.S._, 48 U.S.L.W. 3320
(1979); United States v. Ochs, 595 F.2d 1247, 1252-53 (2 Cir.),
cert. denied, __U.S.__, 48 U.S.L.W. 3323 (1979); United States
v. Culbert, 595 F.2d 481, 481-82 (9 Cir. 1979) (per curiam).
**1A] court must still ask whether the complaining party possess-
ed a fourth amendment interest impinged by the search, before
3la
considering whether the search was ‘reasonable.’ ’’ The
Supreme Court, 1978 Term, 93 Harv. L. Rev. 60, 176 (1979)."'
Our initial inquiry, therefore, is whether appellants are en-
titled to challenge the agents’ entry into Room 1701. This in
turn depends upon whether appellants had a legitimate expecta-
tion of privacy in the room. Rakas v. Illinois, supra, 439 U.S. at
143; United States v. Ochs, supra, 595 F.2d at 1252-53. There is
no doubt that Agapito and Calderon had such expectation of
privacy. As the lawful occupants of the room, they clearly have
standing to challenge the entry.
Rueda’s claim, however, is on a different footing. He was a
mere visitor in the room. In Rakas the Court stated that ‘‘a
casual visitor who walks into a house one minute before a search
of the house commences and leaves one minute after the search
ends’’ has no expectation of privacy in the house and ‘“‘it ad-
vances no purpose served by the Fourth Amendment to permit
[the visitor] to object to the lawfulness of the search.’’ 439 U.S.
at 142. This applies to Rueda. We hold that he fails the
legitimate expectation of privacy test. United States v. Hodge,
594 F.2d 1163, 1165 (7 Cir. 1979).
This does not end our inquiry, however, with respect to
Rueda’s standing claim. He is entitled to challenge the entry
under the automatic standing rule of Jones v. United States, 362
U.S. 257 (1960). Under that rule, a defendant is granted stand-
ing to challenge a search or seizure when the same possession
needed to establish standing is an essential element of the of-
fense charged. /d. at 261-63. That is the situation with respect to
Rueda here. The current rationale for the rule is that it
eliminates the vice of prosecutorial self-contradiction, i.e.,
allowing the government to charge possession as an element of
the crime and at the same time deny that there was possession
sufficient to establish standing to challenge a search or seizure.
United States v. Penco, __ F.2d __ (2 Cir. 1979), slip op. 4503,
4511 (Sept. 6, 1979).
The effect of Rakas on the automatic standing rule is
unclear. United States v. Ochs, supra, 595 F.2d at 1253 n.4; cf.
32a
Rakas v. Illinois, supra, 439 U.S. at 135 n.4. The Court in
Rakas did state that even casual visitors could ‘‘contest the
lawfulness of the seizure of evidence or the search if their own
property were seized during the search.’’ Jd. at 143 n. 11. The
Ninth Circuit has read this to mean that the Supreme Court has
reaffirmed in principle the automatic standing rule. United
States v. Mazzelli, 595 F.2d 1157, 1159-60 (9 Cir.), petition for
cert. filed, 48 U.S.L.W. 3154 (1979). In any event, the rationale
behind the rule—the elimination of prosecutorial self-contra-
diction—remains sound. We hold under the circumstances of
this case, and until we are instructed otherwise, that Rakas does
not foreclose Rueda and defendants similarly situated from in-
voking the automnatic standing rule.'?
Applying the principles of the automatic standing rule to
Rueda, he was entitled to challenge the ertry into Room 1701
with respect to the charge that he was in possession of the one
kilogram of cocaine found in Room 1701. Possession of that co-
caine was an essential element of the offense of possession with
intent to distribute charged in Count Four. The automatic stan-
ding rule therefore is applicable to Rueda on that count. United
States v. Penco, supra, __ F.2d at __, slip op. at 4512.
Rueda, however, was not entitled to invoke the automatic
standing rule to challenge the entry into Room 1701 with respect
to the conspiracy with which Rueda was charged in Count One.
‘*[T]he conspiracy count does not bring into play the automatic
standing rule. . . Possession is ‘neither a necessary. . . or a suf-
ficient’ element of the conspiracy charge and therfore the test
for automatic standing ... is not satisfied.’’ Jd. at 4512
(quoting United States v. Oates, 560 F.2d 45, 55-56 & n. 6 (2
Cir. 1977) ).
We also must consider whether Rueda has automatic stand-
ing to challenge the illegal entry with respect to Count Two
which charges him with possession of the six kilograms of co-
caine found in Atehortua’s apartment. The agents discovered
this cocaine as a result of the phone calls from Atehortua which
they intercepted following their entry into Room 1701. Thus,
33a
the entry into Room 1701, if it was illegal, would affect the
conviction on Count Two. We conclude, however, that Rueda is
not entitled to avail himself of the automatic standing rule with
respect to Count Two. The rule relates to possessory offenses
for contraband found in premises allegedly entered illegally, not
in an apartment located on the other side of the city. ‘‘The vice
of allowing the Government to allege possession as part of the
crime charged, and yet deny that there was possession sufficient
for standing purposes, is not present.’’ Brown v. United States,
411 U.S. 223, 229 (1973). Here the government charged posses-
sion of the cocaine found in Atehortua’s apartment but denied
that Rueda had a possessory interest in Room 1701. These are
not *‘contradictory positions. ’ Jd. Thus, Rueda cannot object
to the entry into Room 1701 insofar as it relates to his convic-
tion for the possession of the cocaine found in Atehortua’s
apartment.'’
To summarize under this section of our opinion: we hold
(1) that, since Agapito and Calderon had a legitimate expecta-
tion of privacy in Room 1701, they were entitled to challenge the
agents’ entry into that room with respect to the search and ev-
idence seized for use on all counts in which they were named;
and (2) that Rueda, under the automatic standing rule, also was
entitled to challenge the entry into Room 1701, but only with
respect to the charge that he was in possession of the one
kilogram of cocaine found in Room 1701.
To the extent that appellants have standing to assert their
claims that the agents’ entry into Rom 1701 was illegal, we turn
now to the merits of their claims.
The general rule of course is that a warrantless search of a
dwelling or, as in this case, a hotel room, is constitutionally pro-
hibited, even though there may be probable cause for the
search. Vale v. Louisiana, 399 U.S. 30, 34 (1970); Chimel v.
California, 395 U.S. 752, 760-62 (1969).'* Under certain cir-
34a
cumstances, however, immediately following an arrest, law en-
forcement officers without a warrant may be permitted to con-
duct a security check—a very quick and limited pass through the
premises to check for third persons who may destroy evidence
or pose a threat to the officers. United States v. Christophe, 470
F.2d 865, 869 (2 Cir. 1972), cert. denied, 411 U.S. 964 (1973).'°
The ‘‘reasonableness’’ of a security check is simply and
straightforward. From the standpoint of the individual, th ein-
trusion on his privacy is slight; the search is cursory in nature
and is intended to uncover only ‘‘persons, not things.’’ United
States v. Bowdach, 561 F.2d 1160, 1168 (5 Cir. 1977). Once the
security check has been completed and the premises secured, no
further search—be it extended or limited—is permitted until a
warrant is obtained. From the standpoint of the public, its in-
terest in a security check is weighty. The delay attendant upon
obtaining a warrant could enable accomplices lurking in another
room to destroy evidence. More important, the safety of the ar-
resting officers or membes of the public may be jeopardized.
Weighing the public interest against the modest intrusion on the
privacy of the individual, Pennsylvania v. Mimms, 434 U.S.
106, 108-109 (1977); Terry v. Ohio, 392 U.S. 1, 20-21 (1968), a
security check conducted under the circumstances stated above
satisfies the reasonableness requirement of the Fourth Amend-
ment.
In the instant case, the agents’ entry into Room 1701 can-
not be justified as a security check. The agents had the room
under constant surveillance for two days. Any belief by the
agents that third persons were in the room would not have been
reasonable. If anything, their surveillance indicated that the
room was empty. Agents in Room 1702, the adjoining room,
eavesdropped on conversations in Room 1701. An agent in
Room 1708 monitored the hallway outside the room. At one
point the agents had looked into the room through its open
door. At no time did the agents hear or see anyone in the room
other than appellants,'* who by the time of the entry were under
arrest. Under these circumstances, the security check exception
to the warrant requirement is inapplicable.
35a
The government’s reliance on United States v. Christophe,
supra, we believe is misplaced.'’ The instant case is sharply
distinguishable. The security check in Christophe followed a
lawful arrest inside the premises. In contrast, the arrests of
Agapito and Calderon took place in the hotel lobby—seventeen
floors removed from Room 1701. Thus, even if the agents here
thought that accomplices remained in the room, there was no
reason for them to believe that the accomplices knew of the ar-
rests so that they might destroy evidence or somehow ‘‘attack”’
the agents.'*
The government’s attempted justification of the entry in
the instant case as a security check is subject to another infirmi-
ty. As stated above, we view the intrusion on privacy occasioned
by a security check to be minimal; a determination of whether
third persons are on the premises requires neither a lengthy nor
disruptive stay. United States v. Jackson, 533 F.2d 314, 316 (6
Cir. 1976). The intrusiveness of this security check was far from
minimal. Following their entry, the agents were in Room 1701
intermittently until the search warrant was obtained almost
twenty-four hours later. They seized a suitcase, intercepted
phone calls, and arranged for the room to be used as overnight
sleeping quarters for Atehortua. In short, they moved in. Once
it was determined that third persons were not present, the agents
should have left the room.'’ The public interest thereafter in
securing the room, located on the seventeenth floor of a hotel,
could have been served just as well by stationing a guard outside
the door.
In view of the intrusiveness of the agents’ stay and the fact
that their surveillance should have indicated to them that no one
else was in the room, we hold that the warrantless entrry into
Room 1701 cannot be justified as a security check and was il-
legal.?°
36a
C.
Finally, this brings us to the effect of the illegal entry on ap-
pellants’ convictions. We hold that the convictions of all ap-
pellants on all counts must be affirmed.
Rueda’s conviction for carrying a firearm during the com-
mission of a federal felony may be disposed of summarily. His
arrest and the subsequent discovery of his gun occurred prior to
the illegal entry. His conviction, therefore, is unaffected if he
was engaged in the commission of a federal felony while carry-
ing the gun. We conclude that he was. His conviction on Count
Three is affirmed.
As for Rueda’s conviction for possession of the six kilo-
grams of cocaine found in Atehortua’s apartment, we have held
that Rueda was not entitled to challenge ihe illegal entry into
Room 1701 with respect to that count. His conviction on Count
Two is affirmed.?'
In reviewing appellants’ convictions on Counts One and
Four which charged, respectively, conspiracy and possession
with intent to distribute one kilogram of cocaine found in Room
1701, we have held that Agapito and Calderon have standing to
challenge the entry with respect to their convictions on both of
these counts; but that Rueda is entitled to challenge the entry
only with respect to Count Four, the possession count. For the
reasons that follow, we hold that the convictions of these ap-
pellants on each of these counts must be affirmed.
Although the agents seized the suitcase in Room 1701
which contained the cocaine, they did not open it until after the
warrant had been obtained. The one kilogram of cocaine,
therefore, was admissible if the warrant was valid. United States
v. Christophe, supra, 470 F.2d at 869. The affidavit in support
of the warrant, however, refers to the cocaine, money and drug
paraphernalia seized at Atehortua’s apartment. Assuming that
these items were tainted because they were obtained directly as a
result of the telephone calls intercepted during the agents’ illegal
stay in Room 1701, we nevertheless hold that this does not com-
pel reversal of the convictions, for the following reasons.
37a
Two untainted portions of the affidavit contain a sufficient
showing of probable cause to render the warrant valid, despite
the reference to tainted events which occurred after the illegal
entry. United States v. Giordano, 416 U.S. 505, 554-56 (1974)
(Powell, J., concurring in part and dissenting in part) (collecting
cases), Parts Mfg Corp. v. Lynch, 129 F.2d 841, 842-43 (2 Cir.),
cert. denied, 317 U.S. 674 (1942); United States v. Cognato, 408
F.Supp. 1000, 1005 (D. Conn.) (Newman, J.), aff’d mem., 539
F.2d 703 (2 Cir. 1976) cert. denied, 430 U.S. 956 (1977). First,
Rueda’s confession that he had delivered cocaine to Room 1701
established probable cause that cocaine was in the room. Se-
cond, the reliable information furnished by Mr. X, which was
corroborated by the agents’ own observations, provided ample
probable cause. True, the past reliability of Mr. X was not set
forth in the affidavit and cannot be considered in assessing the
validity of the warrant. Aguilar v. Texas, supra, 378 U.S. at 109
n.1. But ‘‘[s)pecific allegations of reliability or past reliable con-
tact are not required when the informant in question [here Mr.
X] was an eyewitness to the crime.’’ United States v. Rollins,
supra, 522 F.2d at 164. As stated above, the information sup-
plied by Mr. X indicated that it was based on first-hand obser-
vation.
Since the warrant was validly issued, the evidence seized
pursuant to the warrant was admissible. That evidence, primari-
ly the one kilogram of cocaine found in the suitcase in Room
1701, constituted overwhelming proof of guilt on the counts
which charged conspiracy and possession with intent to
distribute one kilogram of cocaine. Thé convictions of all ap-
pellants on Counts One and Four are affirmed.
38a
To summarize:
(1) The agents did not violate the Fourth Amendment
when they pressed their ears against the door connect-
ing Rooms 1701 and 1702 in order to overhear ap-
pellants’ conversations.
(2) The agents had probable casuse to arrest appellants.
(3) (a) Agapito and Calderon had a legitimate expecta-
tion of privacy in Room 1701 and were entitled to
challenge the agents’ entry into the room. Rueda was
entitled to challenge the entry under the automatic
standing rule, but only with respect to the charge that
he was in possession of the one kilogram of cocaine
found in Room 1701.
(b) The agents’ warantless entry into Room 1701,
not being justified as a security check, was illegal.
(c) Despite the illegal entry, since the search war-
rant used to seize the one kilogram of cocaine in
Room 1701 was valid, appellants’ convictions on
Counts One and Four for conspiracy and possession
with intent to distribute that cocaine are affirmed.
(d) Rueda’s convictions on Counts Two and Three
are affirmed.
We have considered carefully appellants’ other claims of
error and find them to be without merit.
Affirmed.
39a
FOOTNOTES
Following the return of the jury’s verdicts finding all appellants
guilty on all counts as charged, the district court sentenced ap-
pellants as follows:
Agapito — Concurrent five year terms of imprisonment on
Counts One and Four, to be followed by concurrent three year
special parole terms on each count.
Calderon — One year term of imprisonment on Count One,
with credit for time served; five year term of imprisonment on
Count Four, execution suspended and appellant ordered to serve
five year term of probation; three year special parole terms on
Counts One and Four, to commeace on expiration of confine-
ment.
Rueda — Concurrent seven year trms of imprisonment on
Counts One, Two and Four, to be followed by concurrent ten
year special parole terms on each count, three year term of im-
prisonment on Count Three, to be served consecutively to
sentences on Counts One, Two and Four.
The government asked that the identity of ‘‘Mr. X’’ not be
disclosed. It submitted a supporting affidavit setting forth his
identity but representing that the affidavit be sealed in order to
protect the source.
Atehortua was never arrested. She returned to her apartment the
next day and subsequently disappeared. She did not testify at the
suppression hearing or at the trial.
Although the three appellants asserted this claim in the district
court, only Rueda presses it on appeal. We conclude that Rueda,
though only a casual visitor to the hotel room of Agapito and
Calderon, is entitled to challenge the eavesdropping under the
automatic standing rule because, in addition to the conspiracy
charge, he was charged with possession of the cocaine, found in-
Room 1701. Section IV(A) of this opinion, infra, United States
v. Penco, _, __ (2 Cir. 1979), slip op. __F.2d 4503, 4510-12
(Sept. 6, 1979).
10.
ll.
40a
The plurality opinion in White is authoritative on this point.
United States v. Horton, 6701 F.2d 319, 320-21 & n.1 (7 Cir.
19769); United States v. Baranno, 487 F.2d 654, 657 n.1 (2 Cir.
1973); cf. United States v. Miller, 425 U.S. 435, 443 (1976).
The Hoffa Court, in turn, was quoting Justice Brennan in Lopez
v. United States, 373 U.S. 427, 465 (1963) (dissenting opinion).
The absence of electronic eavesdropping of course is significant.
As Justice Brennan has pointed out:
‘{T]here is a qualitative difference between electronic
surveillance ... and conventional police strategems such as
eavesdropping . . . latter [does] not so seriously intrude upon
the right of privacy. . . . [Eavesdropping] is the kind of risk we
necessarily assume whenever we speak. But as soon as electronic
surveillance comes into play, the risk charges crucially. There is
no security from that kind of eavesuropping, no way of
mitigating the risk, and so not even a residuum of true privacy.”’
Lopez v. United States, supra, 373 U.S. at 465-66 (dissenting
opinion), quoted in United States v. Llanes, supra, 398 F.2d at
864.
While Jackson dealt only with motel rooms, it is equally ap-
plicable to hotel rooms.
An apartment of course has features common to both a private
home and a hotel room. This case does not involve an apartment
only a hotel.
That Rueda’s actions also were susecptible of an innocent inter-
pretation does not warrant a contrary holding. ‘‘[A]n officer
need not be able to negate all possible lawful explanations of a
situation before making an arrest.’’ United States v.. Rodriguez,
532 F.2d 834, 838 (2 Cir. 1976).
The same commentator notes that Rakas ‘‘appears to have more
conceptual than practical effect .... [The] initial inquiry is
precisely the same question that many courts have long asked
under the rubric of ‘standing’.’’ 93 Harv. L. Rev. at 176.
12.
13.
4
15.
16.
16.
4la
Other Circuits also have continued to apply the automatic stand-
ing rule following Rakas. United States v. Byers, 600 F.2d 1130,
1132 (5 Cir. 1979); United States v. Salucci, supra, 599 F.2d at
1097-98; United States v. Mazzelli, supra, 595 F.2d at 1159-60.
Since the events leading to the charge against Rueda in Count
Three—carrying a firearm during the commission of a federal
felony—all occurred prior to the entry into Romo 1701, his con-
viction under that count is unaffected by the entry.
The general rule is subject to ‘‘a few specifically established
and well-delineated exceptions.’’ Katz v. United States, supra,
389 U.S. at 357. E.G., Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973) (consent); Chimel v. California, supra, 395 U.S.
at 762-63 (search incident to an arrest); Warden v, Hayden, 387
U.S. 294, 298-99 (196t7) (hot pursuit). None of these exceptions
is applicable here.
Our recent decision in United States v. Dien, 609 F.2d 1038 (2
Cir. 1979), modified on rehearing, slip op. 5941 (Jan. 31, 1980)
does not control this case. In Dien federal agents entered the
premises of a suspect and proceeded to question him. Subse-
quently the agents conducted a warrantless search of a concealed
area of a room and, after detecting the odor of raw marijuana,
arrested the suspect. We rejected the government’s attempted
justification of the search as a security check. As our opinion ex-
plains, Dien clearly was not a security check case. The search
was not made immediately upon entering the room, thereby
undermining the agents’ claim that they were looking for
others. Jd. at 1047.
We of course exclude the small boy who entered and left the
room with Rueda.
United States v. Diaz, 577 F.2d 821 (2 Cir. 1978), also cited by
the government, we think is not pertinent. Although there was a
security check following an arrest inside the premises, id. at 823,
our opinion does not comment on the propriety of the security
check. It dealt with the agents’ presence on the premises follow-
ing the security check, as opposed to the legality of the entry into
the premises. Jd. at 823-24.
18.
19.
20.
42a
We do not suggest that law enforcement officers who arrest an
individual outside the premises never may conduct a security
check inside the premises. United States v. Baker, 577 F.2d
1147, 1152 (4 Cir.), cert. denied, 439 U.S. 850 (1978); United
States v. Bowdach, supra, 561 F.2d at 1168-69. We hold only
that in such a case, the arresting officers must have (1) a
reasonable belief that third persons are inside, and (2) a
reasonable belief that the third persons are aware of the arrest
outside the premises so that they might destroy evidence, escape
or jeopardize the safety of the officers or the public. Cf. United
States v. Campbell, 581 F.2d 22, 25 (2 Cir. 1978) (exigent cir-
cumstances neededc for warantless entry into home to make an
arrest supported by probable cause); United States v. Reed, 572
F.2d 412, 424 (2 Cir.) (same), cert. denied, 439 U.S. 871 (1978).
We distinguish cases wehre third persons are discovered on the
premises who the agents do not have probable cause to arrest but
who nevertheless might destroy evidence. E.g., United States v.
Diaz, supra, 572 F.2d at 823-24 (defendant’s roommate); United
States v. Christophe, supra, 470 F.2d at 869 (defendant’s wife).
Under these circumstances, arresting officers may have to re-
main on the premises following a security check. As Judge
Friendly stated in Diaz, there may be ‘‘no other practical
means’’ of securing the premises until a warrant can be obtain-
ed.’’ 572 F.2d at 824 n.3.
The district court also found the entry proper because the agents
reasonably believed that associates of appellants would make
phone calls in furtherance of their criminal activity. It reasoned
that ‘‘{t}he paramount importance of continuing the investiga-
tion and possibly discovering the identity of other members of
this conspiracy’’ justified the entry. Even assuming that the
agents had such a belief, the district court’s pproach appears to
have no support in the case law, so far as we know. There is no
‘*continuing the investigation’’ exception to the warrant require-
ment and we decline to create one. United States v. Campbell,
supra, 581 F.2d at 25-26, cited by the district court, we do not
believe supports the court’s approach. There we stated that of-
ficers with a reasonable belief that a suspect may escape, destroy
evidence or continue the commission of an ongoing crime were
entitled to make a warrantless entry into a home in order to ar-
rest the suspect. Jd, at 26. We did not suggest that an officer’s
21
43a
interest in continuing an investigation after an arrest constituted
a sufficient exigent circumstance to justify a warrantless search.
Rueda also challenges the search of Atehortua’s apartment on
the ground that she did not voluntarily consent to the search. We
disagree. There is no indication in the record that her consent
was coerced. Rueda’s principal argument is that Atehortua’s in-
itial verbal consent was involuntary because the agents did not
inform her that she could refuse permission to search. But
knowledge of the right to refuse, though a factor in determining
voluntariness, is not a prerequisite to a consent search.
Schneckloth v, Bustamonte, supra, 412 U.S. at 249. Moreover,
the agents informed Atehortua of her right to refuse before she
signed the written consent form.
44a
APPENDIX C
Order Denying Cetition xor Rehearing
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the seventh day of May,
one thousand nine hundred and eighty.
Present: Hon. William H. Timbers; Hon. Ellsworth Van
Graafeiland; Hon. Jon O. Newman, Circuit Judges.
79-1257; 79-1265; 79-1377
UNITED STATES OF AMERICA,
Appellee,
V.
CALIXTO AGAPITO, MARTHA CALDERON
and HORACIO RUEDA,
Appellants.
A petition for a rehearing having been filed herein by
counsel for the Appellants
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
A. DANIEL FUSARO, Clerk.
45a
Order Denying Petition for Rehearing En Banc
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the seventh day of May,
one thousand nine hundred and eighty.
NOS. 79-1257, 79-1265; 79-1377
UNITED STATES OF AMERICA,
Appellee,
V.
CALIXTO AGAPITO, MARTHA CALDERON and
HORACIO RUEDA,
Appellants.
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel
for the appellants, and no active judge or judge who was a
member of the panel having requested thatr a vote be taken on
said suggestion,
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
s/ IRVING R. KAUFMAN
Chief Judge
46a
APPENDIX D
Affidavit for Search Warrant
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
Docket No. 79, Case No. 225
In the Matter of An Application of the
UNITED STATES OF AMERICA,
vs.
for a warrant to search premises known as Room 1701 of the
Sheraton-Americana Hotel, 810 Seventh Avenue, New York,
New York, including a suitcase and shoulder bag located therein
BEFORE: HONORABLE KENT SINCLAIR
The undersigned being duly sworn deposes and says:
That he has reason to believe that on the premises known as
Room 1701 of the Sheraton-Americana Hotel, 810 Seventh
Avenue, New York, New York, including a suitcase and
shoulder bag located therein in the Southern District of New
York there is now deing concealed certain property, namely, co-
caine, .. . arid narcotics paraphernalia which are contraband
property intended for use in the commission of Federal criminal
offenses, in the aforementioned. . . are being used for the com-
mission of violations of 21 U.S.C. §§ 812, 841 and 846.
And that the facts tending to establish the foregoing
grounds for issuance of a Search Warrant are as follows:
see ee &
1. 1 am a Special Agent of the Drug Enforcement Adminis-
tration, United States Department of Justice.
47a
2. In addition to my own observations made from Room
1702 during the time mentioned below, the source of the infor-
mation below is statements to me by other Special Agents of the
Drug Enforcement Administration.
(a) That on February 21, 1979, an informant who has
proven reliable on several occasions in the past, having given in-
formation and testimony leading : to seven or eight ¢ convictions
and at least one search warrant, called a special agent DEA and
informed said agent in substance that a close friend of the infor-
mant informed the informant that he had been inside Room
1701 at the Sheraton-Americana Hotel, 810 Seventh Avenue,
New York, New York and had seen there approximately four
kilograms of cocaine and, further, that the room was occupied
by a man and a woman named Martha.
(b) That on February 21, 1979, DEA agents went to the
Sheraton-Americana Hotel, 810 Seventh Avenue, New York,
New York and confirmed through hotel security personnel that
a female by the name of Martha had occupied Room 1701 for
several days and had been recently joined there by a male and
that the female paid for the room on a daily basis in cash,
(c) That special agents of the DEA occupied Room 1702,
which adjoins Rom 1701.
(d) That the agents in Room 1702, through overhearing
parts of conversations through the door of Room 1701, deter-
mined that a male and a female were in Room 1701 and that
from approximately 6 P.M. on February 21, 1979 to approx-
imately 4 P.M. on February 22, 1979, the female left Room
1701 on only two occasions and that the male left the room until
just prior to his arrest.
(e) That agents i Room 1702 overheard the female answer
a telephone call in Room 1701 and a conversation between the
male and female in Room 1701 indicated that the person calling
Room 1701 was to arrive at Room 1701 on the following day at
approximately 11 A.M.
(f) That at approximately 12:30 P.M. on February 22,
1979, agents in Room 1702 overheard one of the persons in
48a
Room 1701 and state in substance that I am in 1701 come on
down.
(g) That agents of the DEA observed a male individual
subsequently determined to be Horacio Ruede, carrying a
shoulder bag and that after his arrival at the apartment, agents
in Room 1702 heard sounds of a ripping and a shuffling, sug-
gesting the tearing of tape and/or the counting of money.
(h) That Horacio Rueda left Room 1701 without the
shoulder bag, was arrested while leaving the Sheraton-
Americana Hotel, 810 Seventh Avenue, New York, New York,
and was found to be in possession of a loaded .22 caliber Derr-
inger.
(i) That after being advised of his rights, Horacio Rueda
stated to an agent of the DEA that he had delivered cocaine to
Room 1701.
(j) That subsequent to the admissions of Horacio Rueda,
the male and female in Room 1701 subsequently determined to
be Calixto Agapito and Martha Calderon left Room 1701,
Calixto Agapito carrying an attache case, and were shortly
thereafter arrested.
(k) That the attache case carried by Calixto Agapito, at
the time of his arrest, contained $29,000 in cash.
(1) That agents of the DEA were subsequently admitted
to Rom 1701 by hotel security personnel and after determining
that no other persons were in the room, secured said room and
that in the room are a suitcase and shoulder bag.
(m) That while in Room 1701, the telephone rang and
was answered by a Spanish speaking agent who then assumed
an undercover role indicating he was an associate of the persons
who hads occupied Room 1701.
(n) That after two. or three conversations with the same
female who called Room 1701, the undercover agent received
permission from the woman to come to her apartment in
Manhattan to transact some business.
(o) That the undercover officer went to said apartment in
Manhattan, Apartment 3B, 328 East 85th Street, New York,
49a
New York, was admitted by the female and observed cocaine
in plain view and after identifying himself, was permitted to
conduct a. . . search, resulting in the discovery of approximate-
ly seven kilograms of cocaine and narcotics parapheranalia.
And, further, there were numerous pictures of the woman in
said apartment together with Horacio Rueda.
s/Victor Aponte, Special Agent,
Drug Enforcement Administration
Sworn to before me this
23rd day of February, 1979
s/ Kent Sinclair, Jr.
HON. KENT SINCLAIR, JR.
United States Magistrate
Southern District of New York
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