# Petition — Agapito v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2494%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 834 ## Text 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 | TTT TTT Pr erie ce a | PVE TT ITT Ite eee Re ARs. ND one 00 06500040 n0seS4 Senn Rhee 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2494%3A1. Public record. Not legal advice.