Petition — Segura v. United States

RECEIVED

AUG 2 7 1982

oa ie

Wo. 34-5242 OFFICE OF THE CLERK

Ge: SUPREIE COURi, US,

SUPREME COURT OF THE UNITED STATES

October Term, 1982

ANDRES SEGURA and LUZ MARINA COLON,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AXELROD & WARBURGH

Attorneys for Petitioner

ANDRES SEGURA

370 Lexington Avenue

New York, New York 10017

(212) 689-8970

PETER J. FABRICANT, ESQ.

Attorney for Petitioner

LUZ MARINA COLON

370 Lexington Avenue

New York, New York 10017

(212) 689-7776

TABLE OF .CONTENTS

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TABLE OF AUTHORITIES

| Page

| Aguilar v. Texas, 378 U.S. 108 (1964)................. 15

Cardwell v. Lewis, 417 U.S. 583 (1974).........ceeeeues 10

| Chimel v. California, 395 U.S. 752, 766 n. 12 (1969)... 10

| Franks v. Delaware, 438 U.S. 154 (1978)..........0e000. 16

| Gillespie v. United States, 368 F.2d (8th Cir. 1960)....17,18

| Giordenillo v. United States, 357 U.S. 480 (1958)...... 17

| scnnsoe v. United States, 333 U.S. lO.--seeeneccncveuns 16

Jones v. United States, 362 U.S. 257 (1960)....-.+-+6+. 16

McClain v. United States 676 F.2d 915 (2nd Cir. 1982).. 19

McDonald v. United States, 335 U.S. 451, 456 (1948)..-. 14

Nathanson v. United States, 290 U.S. 41 (1932)......... 16

| People v. Shuey, 120 Cal. Rptr. 83 533 P.2d 211 (1975). 8,12

Spinelli v. United States, 393 U.S. 410 (1969)......... 15

I State v. Bean. 572 P.26 1102 (Washi. 1978).............. 8,12

|} State v. Dorson, 615 P.2d 740 (Haw. 1980).........000-. 8,13

| Steagald v. United States, 101 S.Ct. 1642, 1649 (1981). 10

| United States v. eb 620 F.2d 324 (2nd Cir.)

4 » MO CIGED) 0 vive hwdcedctresecoegs 10,13

- 8,11

cert den.,

9,11,13

19

| United States v. Bailey, 327 F.Supp 802 (ND Ill. 1977). 18

| United States v. Fitzharris, 633 F.2d 416 (5th Cir.

ST UL. <> in bac 0c clas abe obs > ce hd'ee che ss evts a

|} United States v. Flanagan, 423 F.2d 745 (5th Cir. 1970) 17,18

| United States v. Gramlich, 551 F.2d 1359 (5th Cir.1970) 17

| United States v. Griffin, 502 F.2d 959 (6th Cir.

ee TTS cect Gan MSGS. 1050 (1996) 2 oo veces: 8,10,11

| United States v. Karathanos, 531 F.2d 26 (2nd Cir.1976) 15

| United States v. Levine, 500 F.Supp. 777 (WDNY 1980)....12

United Sta Vv , 572 F.2d, 412, 422 (2nd Cir.

1578} cert eed, 439 U.S. 913 (1978).....-6-+40e+ 10

. ; , * : 3

Page

United States v. Segura, 663 F.2d 411 (2nd Cir. 1981).. 7,13,19

United States v. Taylor, 599 F.2d 832 (8th Cir. 1979).. 18

United States v. West, 453 F.2d 1351 (3rd Cir. 1972)... 19

| United States v. Whitlow, 339 F.2d 975 (7th Cir. 1964). 19

| Wong Sun v. United States, 371 U.S. 471, 468 (1963).... 9,15

| Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978).... 17

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1982

ANDRES SEGURA and LUZ MARINA COLON,

Petitioners,

Vv.

| UNITED STATES OF AMERICA,

Respondent.

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners pray that a writ of certiorari issue to ~

| review the judgments of th: United States Court of Appeals for

| the Second Circuit entered November 6, 1981, and June 29, 1982.

CITATIONS TO OPINION BELOW

“

The decision of the District Court, dated May 15, 1981,

lis found in Appendix A hereto. The interlocutory decision of

} the Court of Appeals, dated November 6, 1981, and reported at

1663 F.2d 411 (2nd Cir. 1981) is found in Appendix B hereto. The

| decision of the Court of Appeals affirming the convictions is

i} found in Appendix C hereto.

JURISDICTION

The Court of Appeals judgment reversing, in part, the

|}District Court's suppression of evidence, was entered November

16, 1981. The Court of Appeals judgment affirming the convictions

lwas entered June 29, 1982. The jurisdiction of this Court rests

upon 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the introduction into evidence of contra-

band seized after a 19-hour hiatus between the illegal entry into

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and seizure of petitioners’ dwelling and the obtaining of a search

warrant violates the Constitutional requirement that a magistrate

find probable cause and issue a warrant before the police violate

the privacy of the home?

2. Whether the government's affidavit in support of

the warrant to search petitioners’ dwelling contained material

misrepresentations without which there was no probable cause for

the issuance of the warrant?

PROVISIONS INVOLVED

1. "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 persgns

or things to be seized." United States Constitution, Amend. IV.

2. "No person shall .. . be deprived of life, liberty,

or property, without due process of law." United States

Constitution, Amend. V.

STATEMENT ,

In January, 1981, members of the New York Drug Enforce- y

ment Task Force received information that certain persons were

dealing in cocaine from an apartment located at 12-10 Astoria Park

South, Queens, New York. Undertaking physical surveillance of the].

building, the agents ascertained that the occupants of the apart-

ment were petitioners Segura and Colon. On February 7, 1981,

petitioners were observed moving into a new apartment located at

37-07 147th Street, Apartment 3-D, Queens, New York. The 147th

Street apartment was located on the third floor of a high-rise

building, in the rearof the building. Itis this apartment which

the agents entered on February 12, 1981.

Between January 26, 1981, and February 12, 1981, pet-

itioners were kept under surveillance by the government agents,

Although the petitioners were seen together at times, and lived

together in the same apartment, most of the surveillance was dir-

ected toward petitioner Segura, who was seen on wany occasions

outside the presence of petitioner Colon.

On January 26, 1981, Segura was seen operating a red.

Datsun station wagon. On January 29, 1981, Segura was seen acting

i “suspiciously” in meeting with a person outside his apartment

|} building. On February 8, 1981, Segura was seen meeting with a

| "known drug violater" and driving to Brooklyn with him. On

Linens and meeting with Enrique Rivudalla-Vidal. On all of the

above-mentioned occasions petitioner Segura was seen either alone

or with persons other than Colon.

On February 12, 1981, the agents trailed Segura and

| Queens, and observed them enter the establishment. Not long

| afterwards, Rivudalla and Esther Parra drove into the Burger King

were lot and parked near Segura's car. Rivudalla entered the

| Berger King and sat down at a table with Segura. Colon was

| seated nearby. Shortly thereafter, Colon left the restaurant

l earryite a large shoulder bag. The bag appeared to the agents to

| be bulging in the middle. Colon then entered the car in which eg

| Esther Parra, and exited it shortly thereafter, “zippering-up” the

| shoulder bag, which the agents observed to be noticeably smaller |

| in bulk then when she was observed entering the car.

| As a result of this suspicious activity, the agents

| dropped their survellance of Segura and Colon, and instead fol-

|} lowed Rivudalla and Parra to a residential area of Jackson Heights

| Queens. As Rivudalla and Parra exited their vehicle, the agents

| conducted a Terry stop of them and subsequently discovered one-

|half of a-kilogram of cocaine in a paper bag that was being carried

to DEA headquarters in Manhattan for processing. The arrest of

| Rivudalla took place at approximately 5 p.m. on February 12, 1981.

At about 6 p.m., Rivudalla told the agents that he had

| received the cocaine on consignment from Segura earlier that day

| by Parra. Rivudalla and Parra were immediately arrested and taken |

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j at the Burger King. Originally, Rivudalla was to receive one

| kilogram of cocaine from Segura, but that plan was reduced to a

lhalf of kilogram because Rivudalla was not sure that he could dis-

| pose of an entire kilogram. Finally, Rivudalla told the agents

| that Segura was to telephone him at approximately 10 p.m. that

| day (February 12) to discuss Rivudalla’s success in disposing

lof the consigned cocaine.*

Agent Palombo telephone the United States Attorney's

Office, Eastern District of New York, at 6:30 p.m., and requested

authority to arrest Segura and Colon and to search their apartment.

Assistant United States Attorney Thomas Roth told the agent that

a search warrant could not be obtained until the following morning

| because the Magistrate had gone home. Mr. Roth instructed the

agent to attempt to arrest Segura and Colon, and to go to their

i

apartment building and "to secure the premises outside the prem-

ises."

At 7:30 p.m. on February 12, Agent Shea and two other

officers went to petitioners’ apartment house and gained entry |

| into the building by walking in behind a tenang who unlocked

| the lobby door. At the time of their arrival, the "best infornm-

lation" that the agents had was that the petitioners were not at 4

home. The agents were directly to Apartment 3-D on the third

|

|sations or other noises. It appeared that there were no lights on|

floor. Agent Shea put his ear to the door, and, heard no conver- ,

jin the apartment.

| From 7:30 p.m, until 10:00 or 10:30 p.m., the agents

| hid in the fire stairs on the thid floor where they were able to

observe petitioners’ apartment and also observe anyone enter ox

jexit from the apartment. After about three hours, the agents

| decided to vacate the fire stairs and go outside to the front of

ithe building to wait for the petitioners to arrive.

At about 11:15 p.m., the agents observed Segura walk to

the apartment building. Segura entered the locked vestibule of

*Because Rivudalla was unavailable at the time of the be

ltrial, the conversation between Rivudalla and the agents was not

disclosed to the jury. ,

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the building with a key. The officers followed him inside the

vestibule and placed him under arrest. Agent Shea searched him,

handcuffed him and told him, "Let's go up to the aparment”.

Segura denied living in the building, but was forced to go up to

the third floor with the agents. In the corridor on the third

floor, Segura attempted to stop, so Agent Shea had to shove him.

Agent Shea, with his gun drawn but hidden behind his

leg, knocked on the door of Apartment 3-D. The door was answered

by Luz Marina Colon, who, when she opened the door, was face to

face with the three officers and Segura. The agents walked into

the apartment without seeking permission, and told Colon that

Segura had been arrested and that the agents were "in the process"

of obtaining a search warrant for the apartment.

Present in the apartment, besides Colon, were three

other persons, all of whom were subsequently arrested and all of

whom were subsequently dismissed at the request of the United

States Attorney's Office. Immediately upon entering the apartment,

two officers went into all the rooms of the apartment, and looked

into all of the closets, ostensibly to make sure that no other

persons were there. In the course of this “walk-through”, the

officers saw several jars of lactose and a scale atop a table in ;

the master bedroom. In a closet in the master bedroom, the

officers observed several plastic "baggies" of the sort uagd to J

keep leftover food.

Within five minutes of the three agents entering the

apartment, Agent Palombo arrived and arrested Luz Marina Colon

and the three other persons who were there. As the agents pre-

pared to take away the five prisoners, Colon asked for her should-

er bag, which was on a table in the living room. An agent picked

up the bag, and upon looking inside, discovered a loaded revolver

and two thousand dollars.

Before being taken away, Segura said to the agents:

"The stuff in here is mine."

At least two officers remained in the apartment all

night "to secure the place".

| Rivudalla's telling him that the original plan had been for racy

| mention of the agents’ entry into the apartment the night before,

ee ae et Seer eS a oe. -. a. . a - * fe

The next day, February 13, 1981, a two-page search

warrant affidavit was prepared by Agent Palombo. The affidavit

contained five paragraphs, which may be summarized as follows:

1. At 5:25 p.m. on February 12, 1981, Rivudalla and

| Parra were arrested in possession of one pound of cocaine.

2. Rivudalla informed agents that he had received

the cocaine from Segura at the Burger King restaurant earlier

| that day.

3. The agents had seen Rivudalla and Segura meet at

the Burger King.

4. Segura told Rivudalla that he (Segura) "had an

additional quantity of cocaine at his home".

5. At 11:15 p.m., “agents observed SEGURA approach

the apartment 3D at the location and attempt to enter. At that

time SEGURA was placed under arrest. Following his arrest SEGURA

admitted that he kept additional quantities of narcotics in the

apartment."

At the suppression hearing, Agent Palombo testified

that Rivudalla never made the statement attribyted to him in

| Paragraph four, but was an inference drawn by Palombo from ,

to supply Rivudalla with a full kilogram of cocaine.

Agent Palombo further testified that the allegation in, |

| paragraph five that Segura “admitted that he kept additional

| by Segura's statement, while in the apartment in custody of the

|agents, that "The stuff in here is mine".

The affidavit in support of the search warrant contained

no mention whatsoever of petitioner Luz Marina Colon, and no

jnor of their findings while in the apartment.

The search warrant was approved by a magistrate at

approximately 6:00 p.m. on February 13, 1981. After being told

over the phone at the impounded apartment that the warrant was

signed, Agent Shea supervised its execution at Apartment 3-D.

In the master bedroom, Agent Shea opened an attache case

| and found two packages of cocaine totaling twelve hundred fifty

’ ’ | . ‘ Ka

(1250) grams, and approximately thirty-nine hundred ($3,900)

dollars. The agent searched a coat in the bedroom closet and

found in the pocket fifty-eight (58) grams of cocaine and, on a

closet shelf, records of purported narcotics transactions. Ina

search of the second bedroom, the agents found cash in a dresser

drawer, eighteen rounds of .38 caliber ammunition in a woman's

eyeglass case, and approximately fifty thousand ($50,000) dollars

in a box. The above-named items, as well as the scale, lactose,

and baggies found by the agents the night before, were removed

from the apartment by the agents.

After hearing the testimony of Special Agents Palombo

and Shea, Assistant United States Attorney Roth, and defendant

Rivadulla, the District Court granted petitioners’ motion te

suppress in its entirety (Appendix A). The District Court rested

its decision on two grounds. First, it found that the initial

warrantless entry could not be justified on the basis of any

exceptions to the warrant requirement (Appendix A, 12-18). Second,

the illegality of the initial entry and arrest of Colon, coupled

with the unreasonableness of the delay in securing a search,

warrant, required the suppression of the evidence seized from 1

petitioners’ dwelling. "To validate the search of the apartment

under the circumstances of this case would permit Goverpment a

agents to take advantage of their own wrong.” (Appendix A, 22).

On appeal by the government to the Court of Appeals, the

District Court's order was affirmed in part and reversed in part.

The Court of Appeals held that the entry by the agents into pet-

itioners’' dwelling was not justified, and that all items discovered

prior to the issuance of the search warrant must be suppressed.

However, the evidences atnbaxat pursuant to the search warrant.

should not have been suppressed, and may be introduced into evi-

dence at petitioners’ trial. United States v. Segura, 663 F.2d

411 (2nd Cir. 1981) (Appendix B).

The petitioners’ then proceeded to trial in the District

Court and were convicted of narcotics offenses.

—_—--.

The Court of Appeals affirmed the convictions, reject-

° ing the contentions of the petitioners that the search warrant

was invalid because it was procured on the basis of material mis-

representations and that the convictions were based on insuffi-

cient evidence (Appendix C).

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals for the Second

Circuit upholding the introduction into evidence of contraband

seized from a dwelling many hours before a warrant is obtained

(App. B) is in direct conflict with the following Court of

Appeals and State Court cases: United States v. Griffin, 502

F.2d 959 (6th Cir. 1974), cert. denied, 419 U.S. 1050 (1974);

United States v. Allard, 634 F.2d 1182 (9th Cir. 1980); State

on

v. Bean, 572 P.2d 1102 (Wash. 1978); People v. Shuey, 120 Cal.

Rptr 83, 533 P.2d 211 (1975); and State v. Dorson, 615 P.2d 740

(Haw. 1980).

Furthermore, the material misrepresentations contained

in the affidavit for the search warrant pose additional Constitu-

tional questions dealing with the Warrant Clause of the Fourth

Amendment .

In the instant case, after illegally entering and in-

pounding petitioners’ apartment at 11 p.m. on February 12, 1981, J,

the officers arrested all of.the-occupants and stationed several

officers inside the apartment to wait for the expected issuance

of a search warrant. The search warrant was granted by a magis-

trate at 6.p.m. on February 13, 1981, approximately nineteen (19)

hours after the seizure of the apartment, and approximately

twenty-four (24) hours after the police initially made inquiries

about obtaining a warrant.

The District Court concluded "that there was sufficient

information contained in the affidavit independent of any inform-

ation that the agents gathered at the time of the illegal entry

to justify the issuance of the warrant by the magistrate. In

other words, the warrant was valid.” (App. A, 18-19). The Court

| of Appeals likewi:e found the warrant to be valid.

The respondent may argue that because the warrant was

“valid”, the initial illegality of the agents should be excused

| and the evidence should be admissible. To accept the argument

| would be to nullify the protections of the Warrant Clause of the

| Fourth Amendment in that it would allow the police co illegaly

| enter a dwelling any time they later planned to seek a search

warrant. The question of probable cause would be left at the dis-

cretion of the police rather than in the hands of an impartial

magistrate.

The test for whether to suppress evidence seized pur-

Suant to @ warrant executed after an unlawful entry is “whether,

granting establishment of the primary illegality, the evidence to

which instant objection is made has been come at by exploitation

of that illegality or instead by means sufficiently distinguish-

able to be purged of the primary taint.” Wong Sun v. United

States, 371 U.S. 471, 468 (1963).

The Court of Appeals for the Second Circuit in dis-

cussing the exclusionary rule, has stated that, there are three

possible exceptions to the rule: independent source, inevitable

discovery, and the doctrine of attenuation. Each exception rests F

on the lack of a sufficiently close connection between the state's

| wrongdoing and the invasion of the defendant's reasonable expect-_

ation of privacy. "In each case, we must weight the extent of any

| illegality, the probative value of any legally obtained informa-

| tion, and the relationship between the two, always with the hope

| of vigorously enforcing the Fourth Amendment without imposing in-

} effective constraints on criminal investigations.” United States

| v. Alvarez-Porras, 643 F.2d 54, 60 (2nd Cir. 1981).

Weighing the extent of the illegality, and the close

connection between the wrongdoing and the invasion of petitioners’

privacy, it is petitioners’ position that the “execution” of the

warrant in the instant case was not sufficiently distinguishable

from the illegality of the initial.entry and impoundment of the

| 4partment to be “purged of the primary taint”. Wong Sun v. United

a), a

States, supra at 466.

In weighing the extent of the police illegality, it

must be kept in mind that “the Fourth Amendment is designed to

| prevent, not simply to redress, unlawful police action.” Chimel

| v. California, 395 U.S. 752, 766 mn. 12 (1969). It is respectfully

submitted that the Court must fashion an opinion which would pre-

| vent, in the future, the kind of police activity that was present

| in the instant case. "If suppression motions and damage actions

| were sufficient to implement the Fourth Amendment's prohibition

| against unreasonable searches and seizures, there would be no need

| for the constitutional requirement that in the absence of ex-

igent circumstances a warrant must be obtained for a home arrest

or a search of a home for objects." Steagaid.v. United States,

101 S.Ct. 1642, 1649 (1981). The only way to stop this kind of

illegal police activity is to, in effect, punish the police for

| their misconduct.

In terms of the reasonable expectation of privacy of

the petitioners, there can be no more of such expectation than

| in one's home, at nighttime. "It is clear that one's reasonable

expectation of privacy in the home is entitled to a unique sen-

|} sitivity from federal courts." United States v. Reed, 572 F.2d

| 412, 422 (2nd Cir. 1978), cert. den., 439 U.S. 913 (1978). See

| also: Cardwell v. Lewis, 417 U.S. 583 (19]4).

| The extent of the illegality here is further evidenced

| by the intrusiveness of the police. For the agents to impound

| petitioners’ apartment for nineteen hours awaiting a search war-

| rant that had not even been applied for at the time of the initial

| entry is unconscionable, particularly in view of the fact that a

warrant may be obtained quickly, and may even be done by telephone

Federal Rules of Criminal Procedure, Rule 4l1(c)(2). The agents

“moved in" to the apartment and did not leave until they had

achieved their illegal purpose. United States v. Agapito, 620

F.2d 324 (2nd Cir.) cert.den., 449 U.S. 834 (1980).

United States v. Griffin, supra., deals with a fact

pattern almost indistinguishable from the facts here. In Griffin,

supra., the police had probable cause to search a dwelling, and

when no one answered, they went in, waited four hours for the

| arrival of the warrant, and then searched the premises. The

| Court upheld the suppression of the evidence seized from the

| premises, on the ground that “any other view would tend in actual

| Practice to emasculate the search warrant requirement of the

Fourth Amendment." Griffin, supra., at 961.

The Court of Appeals for the Second Circuit just

recently discussed Griffin approvingly: "In Griffin, the purposes

} of the exclusionary rule were served by suppressing the evidence,

lest the police be encouraged to execute warrants before they

have been issued and before they have been properly presented to

those persons at the scene of the intended search." United States

v. Alvarez-Porras, supra., at 64-65.

The respondent might seek to distinguish Griffin, supra,

by arguing that the entry there was "forcible" while the entry

here was “peaceful”. There is nothing peaceful about opening

the door to one's apartment and being faced by several agents,

} guns drawn (although hidden behind their legs) who demand entry

| without seeking permission or presenting a warrant. Furthermore,

it may be assumed that the agents would have entered the apart-

| ment by forcing Segura to unlock the door if no one had responded

to their knock, and would have remained there until the hoped-for

warrant arrived. J

In a case where the police "secured" a hotel roo for

| two hours (as opposed to a home for nineteen hours) while waiting

| for a warrant to arrive, it was held “that where a defendant

| establishes that the government illegally ‘secured' and thereby

| seized evidence, and that seizure continues while the government

procures a search warrant, the defendant has demonstrated a

sufficient nexus between the illegality and the subsequently

seized evidence notwithstanding any ‘independent source’ support-

| ing the warrant." United States v. Allard, supra.

In a recent case in the Second Circuit, a co-defendant

| Was arrested with half of the drugs that he was to sell to an

| undercover agent. He told the agent that the rest of the drugs

-— _— -ll-_ Ss . ~ oa > a =

| were in the ¢efendent's apartment. The agents went to the epert-

ment, saw a light on, and knocked on the door. The defendant's

wife opened the door, and the agents went in and "welked through"

the apartment. They did not arrest the wife, but treated her

politely while awaiting a search warrant which arrived less than

two hours later, The Court held that since the home was "secured"

without a warrant, the evidence subsequently seized under a ~~ __.

“valid” warrant must be suppressed. The Court noted "that the

nature of the intrusion is particularly stark in the instant case

because the warrantless entry was into a private residence."

United States v. Levine, 500 F. Supp. 777 (W.D.N.Y. 1980). See

also: State. v. Bean, supra.

Most Courts that have decided this issue have been

unable to distinguish the initial illegality of the entry and

impoundment of the premises from the later seizure under a pre-

sumably valid warrant:

“Analytically this case can be regarded simply

as involving a de facto, inchoate seizure of

the person and eoreery of (the defendant) the

moment the police began the illegal _ccupation.

Thereafte. the obtaining of the warrant could

no more operate to disinfect this conduct than

if the police had actually seized the individual .

items ng og to be suppressed prior to acquisi-

tion of the warrant." People v. Shuey, supra.at 211.

Respondent's argument that the illegal conduct of the

police was "peaceful" and that the police acted in "good faith" J

should not be a_determinative factor in this case. In a State

Court case that examined these issues closely, the premises were

secured by the police in a "peaceful manner". The police made a

security "walk-through" but did not search the premises. The

police agreed with the occupants of the dwelling that, while

awaiting a warrant, the police would leave but would watch the

dwelling and its occupants through a window, and that anybody who

wanted to leave would be frisked. Despite the "peacefulness" of

the entry and impoundment, the Court found that the actions of the

police had the effect of sealing the premises and of curtailing

the occupants’ freedom of movement within the house:

"What the State proposes would necessarily

contemplate that any time the police believe

| fendant could see to what extent the police conducted a search

} prior to the arrival of the warrant.

| indistinguishable and re

| District Court's suppression on the evidence. United States v.

they have probable cause to search, however

the foundation for their belief may turn

out to be, they may with impunity intrude upon

the ety of a person's home, so long as

they are then in the process of applying for a

search warrant. And it would make no differ-

ence that a ate —— later deny their ap-

plication. To justify such a procedure, it

would have to be presumed that where the police

believe they have probable cause, the judge

reviewing their application will also fin

probable cause. is, obviously, would not

necessarily be the case. The potential for

mischief and grave injustice is clearly evi-

dent and such a practice is not sanctioned by

the Fourth Amendment. The siege and immobil-

ization of the house and its occupants which

lasted for a period of some seven hours before

the search warrant arrived was patently inex-

cusable." State v. Dorson, supra. at 740,

The cases that appear to support respondent's position

are distinguishable from the instant case. In United States v.

Agapito, supra., for example, the impounded premises were an

unoccupied hotel room. As mentioned earlier in this.petition,,the

expectation of privacy in a hotel room is substantially less than

that of a house or apartment .*

United States v. Fitzharris, 633 F.2d 416 (Sth Cir. 1980)

is based, in part, on the doctrine of “inevitable disc very", a

doctrine which was rejected by the Second Circuit in United

States v. Alvarez-Porras, supra.

In New Jersey v. Fenin, 381 A.2d 364, 154 N.J. Sup. 282 DI

(1977), the defendant, who was arrested outside his residence, was

brought back into “his residence by the police, and both the police

and the defendant awaited the search warrant. By being present

while waiting for the warrant, unlike the instant case, the de-

Here, there was nobody but the police in the apartment

for nineteen hours. Although the agents testified at the suppres-

sion hearing that they did not conduct a full-fledged search until

they received notification that the warrant had been signed by

the magistrate, their being along in the apartment for so long a

*The Court of fopests found ito, supra., to be

lied solely upon case to reverse the

Segura, 663 F.2d 411 at 416, (App. B).

-13-

>»

| ment for nineteen hours. It is not being argued that perjury

| occurred in this case, but that the situation the police found

| Court stated years ago, we must always have a check on police

| telling the government that the police conduct here cannot and

| contained material misrepresentations without which there was no

| Probable cause for the issuance of the warrant.

| tions in support of the warrant to search petitioners’ apartment

| a8 well as concealing facts necessary for the magistrate's deter-

period of time might well have led to a pre-warrant search that

could not be attacked at the suppression hearing by the petition-

ers because of a lack of knowledge of what went on in the apart-

themselves in could lead to mischief and perjury. As the Supreme

activity in regard to searches and seizures:

“Absent some grave emergency, the Fourth

Amendment has interposed a magistrate be-

tween the citizen and the lice. This was

done not to shield criminals nor to make the

home a safe haven for per. me activities. It

was done so that an objective mind might weigh

the need to invade that privacy in order to en-

force the law. The right of privacy was deemed

too precious to entrust to the discretion of

those whose job is the detection of crime and

the arrest of criminals. Power is a heady ching;

and history shows that the police acting on their

own cannot be trusted. And so the Constitution

requires a em, mo to pass on the desires of

the police before they violate the privacy of the

home." McDonald v. United States, 335 U.S. 451

456 (1948).

#

The extent of the police illegality in this case, the

entry into a home, at night, without consent and without a warrant)

the impounding and remaining in the home for nineteen hours, are

inexcusable. "To validate the search of the apartment under the

circumstances of this case would permit Goverment agents to take

advantage of their own wrong." (App. A, 22). The "hope of ‘.

vigorously enforcing the Fourth Amendment" can only be achieved by| —

will not be tolerated in a court of law, and that the protection

of the Fourth Amendment will not be abrogated by the type of

police misconduct shown here.

Petitioners in no way concede that the search warrant

was valid. The government's affidavit in support of the warrant

Special Agent Palombo submitted willful misrepresenta-

ay

mination.. This amounted to a complete usurpation of the magis-

. trate's neutral and detached role, and was in complete derogation

3 of petitioners’ Fourth Amendment rights.

The false statements are contained in paragraphs 4 and

5 of Palombo's affidavit, as follows:

4. .. . Rivudalla further stated that SEGURA

had told him that he (SEGURA) had an additional

quantity of cocaine at his home. 2 -

, . . Following his arrest SEGURA admitted

that he kept additional quantities of narcotics

in the apartment.

Palombo's suppression hearing testimony revealed his

prior knowledge that these representations were untrue, and that

the statements attributed to Segura and Rivudalla were, in fact,

Palor>o's own conclusions.*

“at this time Rivduller (sic) was asked, did

he believe that Segura still had the other “

half of a kilogram and Rivuduller stated that

yes, he believed that Segura still had the

other half of kilogram at his house. That was

the sum or the essence of the conversation

with respect to Segura." ** (P. 342, line 25,

p. 343 lines 1-5)

The knowing falsity as to paragraph 5 was revealed at

transcript page 266:

THE WITNESS: .. . At the time Mr. Segura

stood up, looked over toward the other de-

tendants and the statement was to the effect

“The stuff in here is mine.”

THE COURT: That is not what you say in the «

affidavit.

THE WITNESS: Inmy.. =. a.

THE COURT: The affidavit says “Following

the arrest he admitted that kept ad-

ditional quantities of narcotics.’

THE WITNESS: That is what we took it to mean.

(Lines 5-15).

*Palombo obviously ulorepesmente’ Rivudalla's "belief"

to be a statement of Segura's to circumvent the pooenrny under

ted ‘

°

lar v. Texas, 378 U.S. 108 (1964) and Spinelli v

S410 (1969), of demonstrating the reliability

former. An arrestees' information has often been deemed 4

untrustworthy. Sun v. United States, supra United Stat

erat + sowie sere ie 78. Unirecsrse |

*+kRivudalla testified that he never stated Segura had

additional cocaine at his house (p. 458).

**kAl] page citations are to the transcript of the

suppression hearing.

-15- : *y

officers that probable cause exists."

Giordenello v. United States, 357 U.S.

GBT U1gss).

Deprived of the perjured representations, the affidavit

|} fails to establish probable cause to believe cocaine was in the

apartment. Segura's arrest is insufficient to establish the

| apartment as a repository for narcotics.

"The critical element in a reasonable

search is not that the owner of the

property is suspected of crime but that

there is reasonable cause to believe

that specific things to be searched are

located on the property to which entry

is me ae Zur ;

436 U.S. 547, 1

Prior authority had also expressed this basic principle:

“Search warrants may be issued only by a

neutral and detached judicial officer, upon

a showing of probable cause - that is, re-

asonable = to believe that criminally

related objects are in the place which the 2

warrant authorizes to be searched, at the

time when the search is authorized to be

conducted. Amsterdam, Perspectives on the

wh oT 58 Minn. L.Rev. 348, 358

1974).

Absent the false representations the only basis for the

| warrant, recited in the affidavit is Rivudalla’s allegation that

| Segura was his supplier. This is wholly inadequate. :

| In United States v. Flanagan, 423 F.2d 745 (Sth Cir. A

1 1970), the fact that defendant, a known felon, had been arrested

| in, possession of goods taken in a recent burglary and not yet -

recovered, coupled with the District Attorney's conclusory state-

| ment that he believed the remainder of the stolen jewelry to be

| concealed in defendant's residence was an inadequate basis for a

} search warrant. The affidavit had contained no factual observa-

} tions nor other facts to indicate that the jewelry would be in

| defendant's residence.

United States v. Gramlich, 551 F.2d 1359 (5th Cir. 1977),

held that the arrest of defendant and his admission of smuggling

marijuana was an insufficient basis for a warrant to search his

residence. See also: Gillespie v. United States, 368 F.2d (8th

Cir. 1966), magistrate furnished information that accused posses-

i sed a gambling stamp and was engaged in gambling business, support-

This testimony cleeriy reveals the knowing and intent-

j ional falsity of the misrepresentations as well as Palombo's

| reckless disregard for the truth. Absent these perjured repre-

sentations the affidavit fails to establish probable cause for a

| search of Apartment 3-D. Pursuant to Franks v. Delaware, 438 U.S.

| 154 (1978) .the warrant was invalid and evidence seized from the

| apartment should have been excluded.

The affidavit requirement protects an individual's

| Fourth Amendment tights by assuring that probable cause will be

determined by a neutral and detached magistrate, Johnson v.

| United States ,\333 U.S. 10, apprised of sufficient facts upon

| which to make such an independant decision. Jones v. United

} States, 362 U.S. 257 (1960). The necessity of a sworn affidavit

as a basis for the search warrant serves two purposes: (1) to

| ensure that the magistrate may judge for himself the persuasive-

ness of the precise facts, relied on to show probable cause; and

| (2) to provide a record upon which the reviewing court may proper-

ly determine the sufficiency of the facts presented to the mag-

istrate to establish probable cause. Nathansop v. United States,

290 U.S. 41 (1932). ‘

Agent Palombo's egregious conduct precluded the mag-

| istrate from exercising neutrality and detachment required by

| the Fourth Amendment. Had he been apprised of the agents’ un- , 5

} lawful entry and consequent 19 hour occupation of petitioners’

| partment, it is probable that the magistrate, cognizant of this

| violation of petitioners’ rights would not have issued the warrant.

| Submission of the perjured affidavit served to compound

| the flagrant disregard for Segura's rights illustrated by the

| concealment of the aforesaid facts. Having represented.his own

| conclusions as actual statements of Rivudalla and Segura, Palombo

| again precluded an independant assessment of the objective facts.

| The agents’ actions, throughout, were wholly repugnant to the

| Fourth Amendment.

“There must be some basis apart from mere

conclusory statements of the complaining

| ed by affiant’s conclusion that he had good reason to believe

gambling devices were concealed at accused's residence; and

United States v. Bailey, 327 F.Supp. 802 (N.D. 111. 1977).

The case of United States v. Taylor, 599 F.2d 832

(8th Cir. 1979) is also instructive. In Taylor, supra., an agent

purchased firearms from one Worley, who, though seen on these

occasions outside Taylor's house, had never been observed entering

or leaving the residence. The officers, thus having no indica-

tion of what transpired inside the house, did not have probable

cause to believe the firearms had come from that residence and

that additional firearms were contained therein. In language

equally applicable to the instant case, the court stated:

"To allege that probable cause existed

to believe that firearms were located

in the house of 1728 must of necessity

rest on a conclusion or mere suspicion ~

and this the Constitution forbids. We

cannot employ the means of a judicial

derrick to move contraband goods into a

given location where, as here, the support

rests solely on a conclusion or a suspicion

and not founded on probable cause."

Id at 837.

It is notable that in the instant case Agent Palombo,

unlike the officers in Gillespie and Taylor, did not merely. rely

upon his own conclusions but represented those conclusions as |

affirmative statements of Rivudalla and Segura.

From the initial unlawful entry to the apartment to o

the perjured affidavit upon which the warrant and subsequent

search was premised, the government's activity was il egal and

in gross disregard of petitioners’ Fourth Amendment rights. De-

leting the perjured allegations, the affidavit contains no more

than an "anemic suspicion" that cocaine would be in petitioners'

apartment. United States v. Flanagan, supra.; United States v.

Whitlow, 339 F.2d 975 (7th Cir. 1964). The Fourth Amendment

requires the evidence seized pursuant to the warrant should have

been excluded from evidence. A contrary ruling,

. would reduce that Amendment to a

nullity and leave the people's homes

secure only in the discretion of police

officers. United States v. Flanagan,

supra., at 747.

| ea .

The Court of Appeals denied the petitioners’ appeal in

regard to this issue upon an erroneous application of the "law of

the case" rule (App. C). Petitioners having prevailed on the

suppression motion was not obligated to assert ancillary grounds

to support the order nor was it incumbent upon petitioners to

appeal that portion of the order which though adverse to them,

was not determinative of that order.

The Court's reliance on McClain v. United States, 676

F.2d 915 (2nd Cir. 1982) is misplaced as in that case. The

Court, in the earlier appeal, had explicitly held that the entire

sentence could be vacated. In United States v. Segura supra,

the Court of Appeals merely accepted the District Court's holding

that the warrant was valid without undertaking any independant

review of that finding. The sole focus of review was the validity

of admitting the items seized subsequent to execution of the '

warrant, which was accepted as valid without question.

The mere reference to the issue in the prior appeal

does not preclude further review. United States v. Bracewell, 569

F.2d 1194 (2nd Cir. 1978). In United States v, West, 453 F.2d

1351 (3rd Cir. 1972) defendant succeeding in having a shotgun

suppressed but the court refused to suppress an inculpatory

statement:

Although the defendant has not appeajed ¢

from that portion of the opinion denying

his motion to suppress the statement, this

will not preclude review of that ruling

following conviction." Id at 1353 FN. 3

| Moreover, the mere fact that petitioners could have

argued the invalidity of the search warrant, in support of the

suppression order, they were not required to do so. Additionally,

Section 3371 under which the government appealed makes no pro-

vision for cross-appeal by the defendant. Thus petitioners did

not forfeit their right to appellate review as to the validity of

the warrant for appellees as they were under no obligation to

raise that issue upon the government's appeal.

CONCLUSION

The warrantless entry into a dwelling and seizure of

the dwelling for many hours while awaiting the contemplated

issuance of a search warrant is a subject which strikes at the

heart of the Fourth Amendment, and is extremely important in the

administration of justice. Particularly in light of the split in

the Circuits, review should be granted.

Respectfully submitted,

AXELROD & WARBURGH

Attorneys for Petitioner SEGURA

370 Lexington Avenue

New York, N.Y. 10017

PETER J. FABRICANT, ESQ.

Attorney for Petitioner COLON

370 Lexington Avenue

New York, N.Y. 10017

BY: Ae} f Faslonaea

-20-

ke

APPENDIX "A"

30S 22 Se Se ee ae es ee eae 2 er

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-<—8——<—<—<= <= = ew ew ew ee eH EO HO oO OO KO eH HH Hr Hr er Hr eH er ee x

UNITED STATES OF AMERICA

-against-

ANDRES SEGURA,

LUZ MARINA COLON,

ENRIQUE RIVUDALLA-VIDAL and

ESTHER PARRA,

Defendants.

Appearances:

HON. EDWARD R. KORMAN

United States Attorney

Eastern District of New York

—_—_——-PF It EDd————->

IN CLERK’S OFFICE

yy. S. DISTRICT COURT E.0.N.Y.

& MAYIOISI O&K

TIME A.M

P.M.

81-CR-80(S)

Attorney for United States of America ;

225 Cadman Plaza East

Brooklyn, New York 11201

WINSTANLEY F. LUKE, ESQ

Assistant U.S. Attorney

Of Counsel

AXELROD & WARBURGH, ESQS.

‘Attorneys for Defendant Andres Segura

370 Lexington Avenue

New York, N.Y. 10017

PAUL E. WARBURGH, JR., ESQ.

Of Counsel

PETER J. FABRICANT, ESQ.

Attorney for Defendant Luz Marina Colon

186 Joralemon Street

Brooklyn, New York 11201

MEISSNER, TISCH, KLEINBERG & BERMAN, P.C.

Attorneys for Defendant Enrique Rivudalla-Vidal

275 Madison Avenue

New York, N. Y. 10016

WESLEY CHEN, ESQ. °

Of Counsel

™

—————_--

LAWRENCE M. HERRMANN, ESQ.

Attorney for Defendant Esther Parra

233 Broadway, Suite 740

New York, N.Y. 10279

BARTELS, District Judge.

—— —< — —— te ai te cate ay ee a. ec ei. atl

Andres Segura and Luz Marina Colon were charged

in an indictment,.. (1) with conspiring to violate 21 U.S.C.’ |

§ 841(a) (1), by intentionally distributing and possessing ~ |

with intent to distribute quantities of cocaine, and (2) with

three substantive counts of possession with intent to dis-

tribute and distribution on February 12, 1981 of 1/2 kilo of

cocaine at one time, and 1 kilo of cocaine at another. — ¥>.

Enrique Rivudalla-Vidal and Esther Parra were charged in one‘

count of the same indictment with possession with intent to ,

distribute 1/2 kilo of cocaine on the same day. In an opinion

delivered from the bench, hereby clarified, this Court denied!

one motion by two of the defendants to suppress certain evi- |

dence, and granted another motion to suppress by two other

defendants.

FACTS

In January, 1981, members of the New York Drug

Enforcement Task Force received information from a liaison

unit that certain persons were dealing heavily in cocaine .

out of an apartment located at 12-10 Astoria Park South in

Queens. Undertaking physical surveillance of the building,

*,

P-o48

DEA agent Palumbo and N.Y¥.C. Detective Frawley ascertained

that the occupants of the apartment were Segura and Colon.

From about January 26, 1981 until the time of their arrest,

Segura and Colon were under virtually constant surveillance ,

by the agents. On February 7, Segura and Colon were observed '

moving into a new apartment on 147th Street in Flushing.

On February 9, Segura was observed driving in an erratic and |

'

? evasive manner until finally, after making two illegal U-turns,

he stopped near the intersection of 221st Street and Northern |

Boulevard, where Rivudalla was awaiting him.in the middle of

the block.. Rivudalla then got into Segura's car, and en- d

gaged in a brief conversation with Segura. ‘ .

On February 12, the agents trailed Segura and ,.

Colon from their 147th Street apartment to the Burger King

located at¢222nd Street and Northern Boulevard in Queens, :

and observed them enter that establishment. Not long after- |

wards, Pivudalla and Parra, accompanied in their car by an

unidentified male, drove into the Burger King lot and parked

near Segura's car. Parra and the other male remained in the

car while Rivudalla entered the Burger King, and sat down

at a table with Segura. Colon was seated nearby. At a

‘ certain point, the agents observed Segura motion to Colon

who, after stopping for a brief-word at Segura's table, then

: exited to the lot carrying a large shoulder bag. The bag

‘ appeared to the agents to be bulying in the middle. Colon

sa dt Dts...

‘remained for a few moments with Segura, and then left, re-

then entered the car in which sat Parra and the other male,

and exited it shortly thereafter, "zippering-up" the shoulder

bag, which the agents observed to be "noticeably smaller in '

bulk then when she was observed entering the car."

‘

Colon reentered the Burger King. Rivudalla

entered his car, and drove off. The agents also drove off

in two cars after them. At a certain point Rivudalla

stopped to let off his male passenger, and then proceeded

to 90th Street and 34th Avenue in Jackson Heights. Both

Rivudalla and Parra exited the car, and began walking

towards 90-10 24th Avenue when Detective Frawley, whose car

was the first at the scene, approached the pair. According,

to Frawley's testimony, Rivudalla became quite nervous as

soon as Frawley identified himself, and Parra seemed almost

faint, her eyes watering over. Frawley asked questions of

Rivudalla concerning his license and registration which,

_when produced, showed two different addresses.

About this time Palumbo joined the trio, and

-asked Rivudalla from where he had just come. Rivudalla '

replied first, that he had just come from home, and then

changed his answer and said that he had come from his place

of work on 14th Street in Manhattan. Palumbo then asked if

he had just come from the Burger King on Northern Boulevard,

or if he knew someone named "Andre". Rivudalla replied

r-o4e

—_— a eh ct -

negatively to both questions. Thereupon Frawley asked

Rivudalla whether he had a gun, to which he replied that

he did not, and allowed Frawley to pat him down.

Palumbo then turned his attention to Parra,

positioning himself in front of her while Frawley was .

opposite Rivudalla. He asked her in Spanish whether she

had a gum. She shook her head, indicating "no." He then ”

pointed to a paper bag he had observed her clutching under

her arm, and asked her whether she had a gun in the bag.

Parra shook her head again, indicating "no," and then

extended the paper bag towards Palumbo, briefly opening it

to establish the truth of her assertion. Palumbo, standing }

only 2-3 feet from her, was able to look down into the bag *

and see a glassine envelope containing white powder. Parra

quickly closed the bag, and brought it back under her arm. i

Palumbo then motioned to her with his finger to give the

bag to him, which she did, albeit reluctantly. Looking

inside again, Palumbo confirmed his original observation of

the glassine bag. Rivudalla and Parra were then immediately

placed under arrest. The powder was field tested by the

agents, and produced a positive reading for cocaine.

Rivudalla and Parra moved to suppress the 1/2 kilo

- ~~ lar

of cocaine on the ground that their arrest was invalid be-

cause of an unauthorized Terry stop, which resulted in an

- invalid seizure at that time of the cocaine. Segura and

Colon, for their part, moved for suppression of the 1 kilo

of cocaine, a .38 revolver, considerable amounts of currency,

and various narcotics records and paraphernalia because of a

warrantless entry and warrantless arrest of Colon at their

apartment on 147th Street in Flushing, Queens on February

12-13, 1981. A full hearing was held at which the Court

heard testimony from some of the officers involved in the

arrests, searches, and seizures, and from defendant

Rivudalla himself.

as ee x I. The "Terry" Stop

Both Rivudalla and Parra challenge the sufficiency |

of the Government's basis for detaining them on the street 7

for investigative purposes. We, therefore, turn to the

law governing this stop, arrest, and seizure. The general .

principle which governs such a seep is that given “specific

and articulable facts which, taken together with rational

inferences from those facts," warrant suspicion of criminal

‘ conduct on the part of tpecific individuals, investigating

officers may briefly detain those individuals on the street

to question them about their identities or even ask that

they explain "suspicious circumstances." Terry v. Ohio,

392 U.S. 1, 21 (1968); United States v. Brignoni-Ponce,

422.U.S. 873, 881-82 (1975). The Court finds that the agents

frat es

" were able to point to such facts in Rivudalla and Parra's

roe

* 4 shes

case.

First, the meeting on February 9, 1981 between

Rivudalla and Segura in Segura's car brought Rivudalla into

the ongoing surveillance operation being conducted by the

Drug Enforcement Task Force with respect to Segura and

Colon. Second, the suspicious conduct occurring shortly

before the stop at the Burger King (to wit, the agents' :

having observed Colon enter Rivudalla's car with a bulging

shoulder bag, and exit with that bulge no longer present),

could only increase the. agents' suspicions that Rivudalla

and Parra were engaged in a narcotics trdnsaction with

Segura and'Colon. While these circumstances might have

appeared to be ordinary when viewed by a layman, the ex-

perienced agents, used to the operating procedures of

narcotics traffickers, were able to draw inferences of

criminal conduct requiring an investigative stop.

At the threshold, it is necessary to decide the

question whether Rivudalla as well as Parra is permittcd

to challenge the validity of the seizure. This inquiry,

once. considered to be one of "standing" to contest the

seizure, has recently been deemed to be “simply whether

the defendant's rights were violated by the allegedly

illegal search or seizure". United States v. Salvucci,

100 S.Ct. 2547, 2551 n.4 (1980). In Salvucci the Court

r-oee

.

ee ——— — - ee a

-— © = ee

o- +.

er tasreeree

abandoned the "automatic standing" rule of Jones v. United

States, 362 U.S. 257 (1960), and held "that defendants

charged with crimes of possession may only claim the benefits:

of the exclusionary rule if their own Fourth Amendment

rights have in fact been violated." 100 S.Ct. at 2549.

In the companion case of Rawlings v. Kentucky,

100 S.Ct. 2556 (1980), the Court explained that the key to -!

resolving that Fourth Amendment inquiry was whether or not

the defendant "possessed a ‘legitimate expectation of

privacy’ in the area searched." Id. at 2561 (quoting

Katz v. United States, 389 U.S. 347 (1967)). Most impor-

tantly for the purpose of this case, the Court also held rn

that mere ownership of the property seized is insufficient

to allow a defendant to challenge the search, without the

}

'

further showing that the defendant "took normal precautions® a

to maintain his privacy" in the goods he owned. 100 S.Ct.

at 2561. In Rawlings the petitioner had placed certain

drugs, concededly his, inside the purse of one of the

occupants of the house in which he was arrested. In fact,

at the time of his arrest he was seated next to that

individual, and her purse was in the Space between them.

The Court held that the petitioner's Fourth Amendment rights

had not been violated, since “the precipitous nature of the

(transfer of drugs to her purse]" could not support the

r-o48

- SP we S eee wees a

nw

inference that he maintained his privacy expectation. For

one thing, petitioner did not have the right to exclude

others from having access to the purse, nor had he ever

"sought or received access to her purse prior to that sudden '

bailment." Id. And the Court held further that "even

assuming ... that [the woman] did consent to the transfer of

4

_—.) <—<cee ae

possession", the rapid, one-time transaction was not the

sort of property transfer as would indicate that the peti-

tioner had maintained his privacy expectation. Id.

Rivadulla seeks to fill in the gaps that existed

in the petitioner's case in Rawlings, by an offer of proof

that: a) Rivadulla was the owner of the 1/2 kilo of cocaine;

eee -~«

.

b) Parra was his agent to receive the cocaine from Segura's

agent Colon; c) following delivery to Parra, she was his

bailee and the cocaine never left Rivadulla's sight, nor did »

Parra ever leave his sight; and d) that Rivadulla therefore |

took such precautions in excluding other people from having :

access to the paper bag as justify this Court's concluding

that he maintained his expectation of privacy in the contents»

of that bag. The Court is of the opinion that even if

Rivudalla had been able to establish the facts he offers

to prove he would still fail to show a Fourth Amendment

violation. One weakness in Rivudalla's bailment theory is

that in fact it was shown that Rivudalla was not the pur-

ro«e

wee.

ee — - So we ‘a

a Lee,

, 20ers O8 1S eee

chaser of the cocaine, but only held it on consignment from

Segura.

Moreover, Rivadulla admits that at the time Colon

allegedly delivered the cocaine to Parra, there was another

male seated in the car with her. Rivudalla, remaining in

the Burger King for a space of time following the delivery,

was not in a position to exclude him from access to the ~

paper bag. In addition, the Court of Appeals in this Cir-

cuit has held that unless an individual "signal[s] an

expectation of privacy by taking special precautions to

secure and secrete the contents of a contajner" which, like

a paper bag, is "not ‘inevitably’ used for the transport or ~

rt

Ks

safeguarding of personal effects," that container is subject ,

to a warrantless search. United States v. Mannino, 635 F.2d

110, 114 (1980) (unsecured plastic bag on car seat); accord, v

-United States v. Markland, 635 F.2d 174, 177 (2d Cir. 1980)

(closed plastic beverage bag lying on ground near overturned

jeep). Quite simply, a bailment of a paper bag does not

demonstrate that one has taken "normal precaution[s] to

maintain [one's] privacy" under Katz and Rawlings.

Rivadulla’s testimony is equivocal at best as to

how the paper bag even got into his car. He is willing to

state that once it did get into his car, it was "his", but

this is sufficient only to show bare possession, not owner-

ro48

ao ee. ee 7

11 ,;

——- —-_ -—

TOO OY 2h eee

{

ship. Adopting the agents’ testimony that Rivadulla failed |

to object to the actual seizure of the paper bag from Parra |

by Palumbo, the Court must conclude that Rivadulla had no |

expectation of privacy with respect to the cocaine in the |

bag held by Parra. As stated in Rawlings, "'arcane' concepts:

of property law ought [not] control the ability to claim the |

protections of the Fourth Amendment." 100 S.Ct. at 2562. !

While Rivadulla cannot challenge the propriety of the

seizure, Parra can. The Court having decided that the police.

had a basis for the Terry stop, the next problem is whether

they had probable cause for the arrest and-search and

seizure incident to that arrest. Facts quickly developed

following the initial stop which matured the agents’ reason— j

able suspicions into probable cause for the arrests. Speci- |

fically, the Court finds that the untruths told by Rivudalla ”

when questioned concerning his whereabouts, and in particular .

his disclaimer of having just been at the Burger King with 7

"Andre", coupled with the possession by Parra of a brown

paper bag, Parra's and Rivudalla's extreme nervousness, and

finally Parra’s voluntary thrusting of the bag towards agent :

Palumbo in order to establish that she had no. gun inside, :

gave the agents the probable cause they needed to arrest both:

Rivudalla and Parra. The turning point was the moment

Palumbo glimpsed the glassine envelope with the white powder Js

for the first time. At that juncture he was justified in

P-o48

sea

.2eC0) eS eee

CO) 2 MA ees Ve cere Le

seizing the bag from Parra and placing both under arrest.

Counsel for defendant Parra has advanced the view

that the questions asked by Palumbo of Parra -- specifically

whether she had a gun in the paper bag -- were not related

to the purpose of the stop, but were a mere ruse designed

to allow him to look inside the bag for drugs. Since it is

customary for those dealing in narcotics to carry guns, .

Palumbo was justified in asking the gun questions, even if

his major purpose was to ascertain if she possessed any

cocaine. ee. ee

Accordingly, the motions to suppress the 1/2 kilo

of cocaine are denied. :

II. The Entry into the Apartment

Exigent Circumstances a

Following the taking of Rivudalla and Parra into

custody, Rivudalla made certain statements indicating to

the agents that Segura probably possessed more cocaine in

his apartment. From the statements, the agents also con-

cluded, properly, that they had probable cause to arrest

both Segura and Colon. Indeed, when Segura first contacted

Rivudalla he offered to sell him one kilo of cocaine, but

.. Rivudalla indicated he would buy only 1/2 kilo. The agents

accordingly notified the Office of the United States Attorney .-

P-o48

13

— we —

of the situation, and that according to Rivudalla's account,

Rivudalla would be expecting a call from Segura later that

same evening of February 12 to see whether the cocaine had

been sold. Thereupon the agents sought, about 6:30 P.M.,

to obtain a search warrant for the apartment on 147th

Street, so as to seize the cocaine before Segura would learn

of Rivudalla's arrest and possibly destroy the cocaine in 4

his possession. x

On being informed that the lateness of the hour

(6:30 P.M.) precluded them from being able to obtain a war-

rant until the following morning, the agents were advised

by the Assistant United States Attorney to proceed directly -

to Segura's and Colon's apartment and arrest the pair and

secure the premises pending the issuance of that warrant.

They arrived around 7:30 P.M., and positioned themselves

both outside the building and inside the fire stairway

opening onto the third floor, the floor on which the apart-

ment, 3D, was situated. From their fire stairway vantage

point they were able to observe anyone entering or leaving

3D. While there, agent Shea of the Task Force placed his

SS

ear to the door of 3D, but heard nothing. After an unevent- '

ful three hours of waiting on the third floor, the agents

inside the building joined the others outside, and ‘all

waited outside.

P-o48

Around 11:15 P.M. Segura appeared, and as he began

to enter the locked door at the lobby, he was apprehended, . |

and placed in handcuffs under arrest. The agents, led by

Shea, informed him that they wanted to go upstairs to 3D, :

to which Segura replied that he did not live in the building |;

or in that apartment. Forcibly bringing him to the third ~ ;

floor, the agents began down the hallway, at which point ~

Segura again resisted. Shea again forced him down the hall-

way to the door of 3D, an apartment which is located in the

rear of the building, with no view of the front of the

building where the arrest took place. Shea knocked on the

door of 3D, with Segura standing, handcuffed, in front of :

him. Luz Colon, unknown to Shea at the time as such, opened '

the door. Detective Shea, without more, walked into the |

apartment with Segura in custody. He was then followed by ,

two other agents, and five minutes later, by Palumbo. Neither

Shea nor any other agent had an arrest warrant, or a search

warrant. Nor did any of the officers ask for or receive

consent to enter apartment 3D.

Upon entering, Shea saw, in addition to the woman

they later learned to be Colon, two other women and one man.

They were Ms. Alvarez, Ms. Castro, and Mr. Tobon-Castro.

All were arrested forthwith. As Colon was about to be

escorted out of the apartment, she indicated that she wished .

to take her shoulder bag with her. Thereupon Officer Prakin

P-o48

15 :

of the Task Force opened it, and withdrew a leather toilet

case, containing a loaded .38 revolver, which he promptly

seized. The arrestees were then taken out, and driven to

DEA headquarters. At least two agents remained in the

building from the late hours of February 12, until around 7

6 P.M. the following day when they were finally notified of.

the issuance of a search warrant, and conducted a thorough

search of the premises. There was thus a lapse of some

Tt SS ee eee oo oe

18-20 hours. from the entry into the apartment to the execu-

tion of the search warrant, during which time the officers

remained inside the apartment and in complete control of it.

On searching the apartment, the agents found one kilo of

cocaine, over $50,000 in U.S. currency, several rounds of

.38 calibre ammunition, and records of narcotics transactions.

In an earlier, cursory search of the apartment for the

presence of other persons, the agents had turned up various —

items of narcotics paraphernalia, including a scale, jars of |

lactose, and a number of Baggies, all in plain view.

In the context of this background, the Court is

persuaded that there was no consent to the entry of the

apartment, no hot pursuit of any Suspects, and no flushing

of the toilet, scurrying of feet, or Slamming of doors in

-" - FR Sheer’ eeceer

agents’ faces such as would indicate the imminent destruc-

tion of evidence. See Payton v. New York, 100 §.Ct. 1371

su..

———— ee ae ae oe —o He o- . . . o oo; - — —

16

---— —— -

> oer

Sats 6 Se ST ee

So Sete (587 eee ee

(1980); United States v. Gomez, 633 F.2d 999, 1007-08 (2d

Cir. 1980); United States v. Levine, 500 F.Supp. 777 (W.D.

N.Y. 1980). It is the Government's position that exigent

circumstances existed, however, in that if the agents had

not entered 3D and arrested the lessee, Colon, she would

have been free to destroy any incriminating evidence or

contraband during the time between Segura'’s arrest and the

issuance of a valid warrant. The Court rejects that argu--

.

me ee we ee eee

ment. In United States v. Agapito, 620 F.2d 324, 336 n.18

(2d Cir. 1980), the Court held that officers who arrest an

individual outside of the premises may conduct a security

check inside the premises only where “the arresting officers |:

. have (1) a reasonable belief that third persons are. ;

inside, and (2) a reasonable belief that the third persons

are aware of the arrest outside so that they might destroy

evidence, escape, or jeopardize the safety of the officers

or the public." (Emphasis supplied.) Neither of these

conditions were satisfied in this case. The agents were

unaware of the presence of Luz Colon inside the apartment,

based on their own surveillance of the premises from 7:30 to :

10:30 P.M. Agent Shea testified, in fact, that he "did not”

ee ee ee

know whether anyone was in the apartment when he arrived,

that he heard nothing when he listened, and that he was not

able to see any lights on in the apartment. (Tr. at 394-96).

Nor, as the Government argues, did it necessarily follow

‘ =~ Tete *

17 |

'

that Colon was in the apartment just because she was not :

with Segura when he was arrested. One may reasonably infer |

that Segura's resisting the officers’ wishes to go to 3D :

was due to his knowledge that there was cocaine in the

apartment, assuming he had such knowledge, rather than that |

Colon was there. |

As to the second condition, the third persons in

the apartment only became aware of Segura's arrest when Shea

knocked at the door and walked in with Segura in handcuffs.

This was too late. There was no evidence whatsoever that

before that moment anyone saw Segura being arrested, or even .

that anyone had seen Rivudalla and Parra being arrested, and |

~-

communicated that information to the inhabitants of 3D.

The police cannct "create their own exigencies through

illegal conduct and then ‘secure' the premises on the theory ”

that the occupants would otherwise destroy evidence or flee.’

United States v. Allard, 634 F.2d 1182, 1187 (9th Cir. 1980).'

The Government's reliance on United States v.

Campbell, 581 F.2d 22, 25 (2d Cir. 1978), is misplaced.

There the Court set forth the factors deemed relevant in

determining whether there exists such an exigency as would

.justify a warrantless entry into a home. Notably absent in

this case are factors numbered -four and five, to wit, "strong,

reason to believe that the suspect is in the premises being

P-o48

= eer fee eee + >=.

18

ae

Pee @ ere wer

entered" and "a likelihood that the suspect will escar

not swiftly apprehended." The prudent course for the

officers to have taken while awaiting a warrant was for

them to have stationed themselves outside the apartment door,

where they would not only have been able swiftly to appre-

hend Colon should she seek to flee, but would also have been

in a position to hear the telltale signs that evidence was

sought to be destroyed, Signs that were not present here,

The officers in this case, absent exigent cir-

cumstances, had no right to cross the threshold of apartment

3D either to arrest Luz Colon, or to search for contraband.

The entry in this case was illegal; Colon's arrest was

illegal, and the search incident to that arrest, as well as

the seizure of items in plain view in the apartment during

a security check, was illegal. The fruits of the searches

and seizures must be Suppressed, to wit, the .38 calibre

revolver and the narcotics paraphernalia,

Execution of the Search Warrant

The real problem in this case is the effect of the

search warrant issued after the premises were illegally

secured. After hearing the evidence, the Court concludes

that there was sufficient information contained in the

affidavit independent of any information that the agents

ee ee ee

18

Te) tae ee 2 Se See

ee al ee eS

entered" and "a likelihood that the suspect will escape if :

not swiftly apprehended." The prudent course for the

officers to have taken while awaiting a warrant was for

them to have stationed themselves outside the apartment door,

where they would not only have been able swiftly to appre-

bend Colon should she seek to flee, but would also have been’

in a position to hear the telltale signs that evidence was or

sought to be destroyed, signs that were not present here.

The officers in this case, absent exigent cir-

cumstances, had no right to cross the threshold of apartment

3D either to arrest Luz Colon, or to search for contraband.

The entry in this case was illegal; Colon's arrest was ,

illegal, and the search incident to. that arrest, as well as

the seizure of items in plain view in the apartment during

a security check, was illegal. The fruits of the searches

and seizures must be suppressed, to wit, the .38 calibre

revolver and the narcotics paraphernalia.

Execution of the Search Warrant

The real problem in this case is the effect of the

search warrant issued after the premises were illegally

secured. After hearing the evidence, the Court concludes

that there was sufficient information contained in the

affidavit independent of any information that the agents

P-o48

19

wa ee a ee

=rsTs

ee —-

gathered at the time of the illegal entry to justify the

|

issuance of the warrant by the magistrate. In other words, :

the warrant was valid. An important case governing the |

i

effect of a later, and valid warrant is United States v.

Griffin, 502 F.2d 959 (6th Cir.), cert. denied, 419 U.S.

1050 (1974), where one agent sought to obtain a search war- |

rant while other agents were dispatched to “secure” a

Griffin's apartment. On arriving at Griffin's apartment, the |

agents knocked on the door, and receiving no answer foretbiy |

entered the premises. The agents were net in hot pursuit !

of anyone, and had no proof that anyone was in the apart-

ment. Upon entry they conducted an initial seizure of items:

found in plain view. Four hours after the entry, during

which time the agents remained in the apartment and in fact

arrested one of the returning occupants, a warrant was 7

issued and a thorough search conducted. There was no dis-

pute that the affidavit upon which the search warrant was ~

procured did not contain any facts discovered as a result “

of the initial entry. The Court held that the entry was

illegal, on the ground that "police who believe they have .

probable cause to search cannot enter a home without a

warrant merely because they plan subsequently to get one.”

Id. at 961. The Court found that evidence discovered

pursuant to a later search must be suppressed on the ground

that discovery was not "inevitable" merely because an

P-o48

oe

officer had been dispatched to obtain a warrant, and that

to allow the police to proceed in such a manner "would tend

in actual pvactice to emasculate the search warrant require- |

ment of the Fourth Amendment." The facts in this case and

the facts in Griffin are indistinguishable, since in neither ,

case did exigent circumstances exist justifying a warrant-

less entry into the home. *

The Court of Appeals in this Circuit has recently

expressed some views on the principles here involved in the

case of United States v. Alvarez-Porras, 643 F.2d 54 (2d

Cir. 1981). Im that case three searches were made of an |

apartment. One was held illegal by the district court,

In the second search two hours later the Government agents ,

had held the suspects in custody awaiting word that a search

warrant, already applied for, had been issued. A distorted “

transmission came over the officers’ portable radio which )

led them to believe that. the warrant had been signed, pur-

suant to which they proceeded to search the apartment. In

the course of the search they learned that the warrant had

not been signed. Thereupon they temporarily discontinued..

the search. Later, when the warrant arrived, the third

search was begun.

The Court held that the seizure of the incriminating

evidence during the second search was proper since the agents ,

P-0o48

acted in good faith in trying to comply with the warrant

requirement, and that the purposes of the exclusionary rule |

|

would not have been served by excluding the evidence. rt

stressed, however, that its decision did not rest on the

broad exception for “inevitably discoverable material.”

Indeed, the Court relied on Griffin, supra, as an example “|

of a case where "the purposes of the exclusionary rule were’ ,

served by suppressing the evidence, lest the police be

ae. SS ToS Sos 2 SSS Ss

encouraged to execute warrants before they have beeen issued |

and before they have been properly presented to those )

persons at the scene of the intended search, [since] as a

general matter ... [t]o allow officials to make an unlawful

—— a ae ee ee

search and then repeat the search pursuant to a warrant

: would sanction the very misconduct the exclusionary rule

wascintended to proscribe." Further, the Court agreed that |

an unlawful search could not be validated simply by repeat-

ing the search pursuant to a valid warrant, citing Vale v.

Louisiana, 399 U.S. 30 (1970): ‘See Alvarez, 643 F.2d at 65.

Alvarez-Porras {n no way justifies the admission .

of evidence seized in this case. Here the agents knew a

, warrant had not been issued, and accordingly the 18-20 hour

> delay in the issuance of the.warrant, during which time the

agents remained in illegal possession of the premises, -

rendered the execution of the warrant unreasonable within

ro«e

22 |.

o_wo Ce

the meaning of the Fourth Amendment, and deprived the lawful

occupant of the apartment, Luz Colon, of her right freely to

occupy and control the same. The evidence would not in-

evitably have been discovered. In fact, Colon might well

have destroyed the evidence had she not been illegally

excluded. The suppression of the evidence subsequently

seized pursuant to the warrant would therefore serve the ~ |

|

deterrent purposes of the exclusionary rule.

United States v. Galante, 547 F.2d 733 (2d Cir.

1976), cert. denied, 431 U.S. 969 (1977), relied on by the

Government, is inapposite. In that case the chain of

|

|

|

|

1

|

causation between the initial search and the subsequent,

seizure by the officers was broken by the intervening :

cooperation of the occupant, a fact not present in this |

case. To validate the search of the apartment under the - 4

circumstances of this case would permit Government agents

to take advantage ee their own wrong. The illegality of the |

initial entry and arrest, coupled with the unreasonableness

of the delay in securing a warrant during the exclusion of

Colon from her home, require the suppression of the evidence |

seized from that home on February 13, to wit, the kilo of |

cocaine, the currency, the .38 ammunition, and the narcotics |

records. The motions to suppress of Segura and Colon are

‘hereby granted. , ,

ee

23°

The foregoing constitutes the Court's findings of

fact and conclusions of law as required by Rule 12(e),

P.R.Ce.P.

SO ORDERED.

Dated: Brooklyn, N.Y.,

Zin LE

La ee District Judge

2

May 15, 1981. 21

r-o48

"Rr

APPENDI

663 Fw 4il Cw 1967)

UNITED STATES COURT OF APPEALS

For THE SECOND Circuit

——- —

No. 1711—September Term 1980

(Argued: August 13, 1981 Decided: November 6, 1981)

Docket No. 81-118]

a c

UNITED States oF AMERICA,

Plain:iff-A ppellont,

—agzinst—

ANDRES SeGura and Luz Marina Coton,

Defendanis-A ppellees.

ls

Before:

MESKILL and Kearse, Cirewit Judges,

and Corrrin, District Judge.*

—s——

Appeal by the United States pursuant to 18 U.S.C. § 373)

from order of the United States District Cour: for the

Eastern District of New York, John R. Bartels, Judge,

suppressing evidence seized from defendants’ apartment,

Affirmed in part and reversed in part.

— —

* Honorable Albert W. Coffrin, of the United States District Cour for Ne

District of Vermont, sitting by designation.

5307

Peter A. CHAVKIN, Assistant United States Attor-

ney, Brooklyn, New York (Edward R. Kor-

man, United States Attorney for the Eastern

District of New York, Vivian Shevitz, Assis-

tant United States Attorney, on the brief) for

Appellant.

Paut E, Warsuron, Jr., New York, New York

(Axelrod & Warburgh, New York, New York,

on the brief), for Appellee Andres Segura.

Peter J. FABricanrt, Brooklyn, New York, Sor

Appellee Luz Marina Colon.

-—

KEARSE, Circuit Judge:

The United States appeals from an order of the United

States District Court for the Eastern District of New York,

John R. Bartels, Judge, suppressing evidence seized by law

enforcefnent officials from the apartment of defendants-ap-

pellees Andres Segura and Luz Marina Colon, who are

charged in four counts of a five-count indictment with

conspiracy to commit an offense under the narcotics laws in

violation of 21 U.S.C. 846 (1976), and with possession and

distribution of cocaine in violation of 21 U.S.C. § 841)(aX1)

(1976). Some of the evidence seized from the apartment was

discovered prior to the issuance of a search warrant and

some was discovered in the search that followed issuance of

the warrant, We affirm the district court's suppression of the

pre-warrant evidence, but reverse the order to the extent that

it suppressed evidence discovered after the issuance of the

search warrant.

FACTS

In January 1981, members of the New York Drug Enforce-

ment Task Force (“Task Force”), having received informa-

tion relating to heavy trafficking in cocaine, had begun a

virtually constant surveillance of Segura and Colon. On

5308

February 12, at approximately 5:00 p.m., Task Force agents

followed Segura and Colon to a Burger King in Queens,

where they observed Segura and Colon effect what appeared

to be the delivery of a bulky item to Enrique Rivudalla- Vidal

and Esther Parra. The agents followed Rivudalla and Parra,

and at approximately 5:30 stopped them for questioning.

Upon learning that a paper bag carried by Parra contained

a glassine bag of white powder, the agents placed Rivudalla

and Parra under arrest. The white powder was eventually

determined to be approximately one-half kilogram of co-

caine, After being advised of his constitutional rights, Ri-

vudalla stated that he had received the cocaine from Segura.

He added that they had originally planned a one kilogram

sale, but that he had requested the smaller quantity because

he was unsure of his ability to sell a full kilogram, and that

Segura was to telephone him at approximately 10 p.m. to

learn whether he had been successful in selling the half

kilogram.

At approximately 6:30 p.m., one of the agents telephoned

an Assistant United States Attorney for the Eastern District

of New York to request permission to arrest Segura and

Colon and authorization to search their apartment. The

Assistant authorized the arrests, but stated that a search

warrant was unobtainable that evening and instructed the

agent merely to secure the apartment without searching it.

At 7:30 p.m. three agents, led by Special Agent Patrick

Shea of the United States Drug Enforcement Agency

("DEA"), who was assigned to the Task Force, set up

surveillance of the defendants’ apartment from the fire stairs

near the door of the apartment, 3D. At that time the agents

had no reason to believe anyone was inside the apartment.

No lights were visible. Shea pressed his ear to the apartment

door, but heard no sounds from within. Segura's car was

not parked in the vicinity. For nearly three hours no one

entered or left the apartment as the agents watched from the

fire stairs. At about 10:30 the agents left the fire stairs to sei

up surveillance outside the building.

5309

At approximately 11:15 p.m. Segura entered the building

alone. The agents followed him into the vestibule and, as he

unlocked the inner door, arrested him. Agent Shea told

Segura they were going to “go up to the apartment.” Segura

denied living in the building, but the agents forcibly took

him to apartment 3D. Shea knocked on the door, which was

answered by a woman later identified as Colon. Shea showed

his badge and told Colon that Segura had been arrested and

that a search warrant was being obtained: then he and the

other agents and Segura entered the apartment. The agents

neither requested nor received permission to enter,

Once inside, the agents discovered three other persons

present with Colon. Two of the agents immediately con-

ducted a security check to ensure that no one~else was

present who might constitute a threat to their safety or

destroy evidence. During this limited inspection they discov-

ered a triple-beam scale and several jars of lactose in plain

view on a bedroom table and numerous small cellophane

bags in a bedroom closet.

Eventually, Colon was placed under arrest, and she, Se-

gura, and the other three persons found in 3D were taken to

DEA headquarters. As Colon was preparing to depart, she

sought to take her shoulder bag with her. Before permitting

this, one of the agents searched the bag for a weapon and

Giscovered a loaded .38 caliber revolver and more than

$2,000 in cash,

Two agents remained in the apartment to secure it until a

search warrant was issued, Because of “administrative de-

lays,” application for the warrant was not presented to a

magistrate until approximately 5 p.m. the following day. The

warrant was issued and then executed at about 6 p.m., some

nineteen hours after the intitial entry. In the search pursuant

to the warrant agents discovered 1,250 grams of cocaine in

an attache case, 58 grams of cocaine in the pocket of a coat

in the bedroom closet, 18 rounds of .38 caliber ammunition,

more than $50,000 in cash, and records of narcotics trans-

actions, The agents seized all of these items, together with

$310

- = «ee oo - - — «

the items discovered during the security check of the previous

night,

This prosecution followed. Segura and Colon moved to

suppress the items seized from their apartment on the ground

that the entry and search violated their rignts under the

Fourth Amendment to the Constitution. The government

contended that the entry into the defendants’ apartment was

justified by exigent circumstances because the agents feared

Colon would destroy the evidence they believed was there

before a search warrant could be obtained. Afier an eviden-

tiary hearing, the district court ruled that the entry was not

justified, Further, the court concluded that although the

search warrant eventually obtained was valid, all of the

evidence seized should be Suppressed because the 19-hour

delay made execution of the warrant unreasonable and

because had it not been for the unlawful entry, the evidence

seized might not have been there 19 hours later,

The government has appealed, as permitted by 18 U.S.C.

§ 3731 (1976), and renews here its contention that exigent

circumstances justified the entry. In the event that, we reject

this argument, the government urges that we reverse the

suppression of evidence other than the gun since that evi-

dence was not “seized” until after issuance of the search

warrant, or, alternatively, that we reverse the suppression

order insofar as it related to evidence discovered after

issuance of the warrant,

DISCUSSION

We conclude, on the authority of United States y, Agapito,

620 F.2d 324 (2d Cir.), cert. denied, 449 U.S. 834 (1980), that

the entry was not justified, but that the evidence discovered

pursuant to the valid search warrant should not have been

suppressed,

A. The Entry

It,is fundamental that warrantless searches. and seizures

are unreasonable within the meaning of the Fourth Amend-

5311

ee ee 7 eo

".**

. _— a ee

_ ——— a fe ee + -—— “* - ~~“ - . — ——--.

ment unless they fall within one of the few, well-delineated

exceptions to the warrant requirement. Schneckloth v. Bus-

tomonte, 412 U.S. 218, 219 (1973); Coolidge v. New Hamp-

shire, 403 U.S. 443, 454-55 (1971). The government argues

that the warrantless entry of the Task Force agents into the

apartment of Segura and Color. ic prevent the destruction

of evidence was lawful under an exception for “exigent

circumstances.” Although this Circuit has upheld a warrant-

less entry into an apartment for the purpose of preventing

the destruction of evidence, United States v. Vasquez, 638

F.2d $07, 529-32 (2d Cir. 1980), we conclude that the

prerequisites for such an entry were not met in the present

case.

The preconditions that will justify a warrantless entry into

premises, following an arrest outside, for a security check to

prevent the destruction of evidence were set forth by this

Court in United States v. Agopilo, supra. There-we stated -

that :

the arresting officers must have (1) a reasonable belief

that third persons are inside, and (2) a reasonable belief U

that the third persons are aware of the arrest outside

the premises so that they might destroy evidence, escape

or jeopardize the safety of the officers or the public. ¢

620 F.2d at 336 n.18. In Agopito, DEA agents had conducted

a two-day surveillance of a 17th floor hotel room, following

which they arrested, in the hotel lobby, the only two persons

believed to have occupied the room. After the arrests the

agents entered the room and seized a suitcase; they remained

in the room intermittently for nearly twenty-four hours until

a search warrant was obtained. We found that the actions of

the agents satisfied neither prerequisite for a warrantless

security check. First, the agents had no reason to believe that

third persons were in the room, since their surveillance of

the room had not revealed the presence of any occupants or

visitors whom they had not already apprehended. Second,

$312

the arrest of the occupants had taken place in the hotel

lobby, seventeen floors removed from the room.

Thus, even if the agents here thought that accomplices

remained in the room, there was no reason for them to

believe that the accomplices knew of the arrests so that

they might destroy evidence... .

Id. at 336. Hence we held that the entry into the hotel room

was unlawful.

Despite the differences in times and distances, we find no

material distinction between Agapito and the present case.

The Task Force members in the present case had kept

apartment 3D under surveillance for some three: hours,

during which they had seen no lights, heard no sounds, even

with an ear pressed against the door, and seen no person

entering or leaving. They had no reasonable belief that

anyone was in the apartment. We are unpersuaded by the

government's argument that Segura’s arrival at home alone

made it reasonable to believe that Colon was already at

home. She could as easily have been elsewhere, especially

since there had been no signs whatever that 3D was dccupied,

Nor is there reason to reach a contrary conclusion on the

basis of the government's argument that Segura might have

learned, through his expected 10 o'clock call to Rivudalla or

otherwise, that Rivudalla had been arrested. The surveilling

agents heard no sound of a telephone ringing in 3D nor any

other activity to suggest that anyone had communicated that

information to Colon,

Even if Segura’s arrival alone made it reasonable to suspect

that Colon was in 3D, there was no reason to believe that

anyone in the apartment knew of Segura’s arrest and was

therefore about to destroy evidence. The arrest took place in

the lobby of the apartment building, two floors below the

apartment. The arrest could not have been observed from

3D, and there was no evidence that anyone saw the arrest

and reported it to the inhabitants of 3D.

The government nonetheless attempts to bring the agents’

$313

ee ee ee

actions within the second Agapito prerequisite by arguing

that their knock at the door of 3D, along with the preceding

commotion as they forcibly brought Segura to the apartment,

alerted the inhabitants of the apartment to Segura’s arrest

and made it likely that they would destroy whatever evidence

was there. Such exigency as inhered in these conditions,

however, was of the agents’ own making. They had no need

to drag Segura to his apartment or to knock at the door, We

will not expand the exception made for emergency security

checks by permitting the agents to “create their own exigen-

cies . .. and then ‘secure’ the premises on the theory that

the occupants would otherwise destroy evidence.” United

States v, Allard, 634 F.2d 1182, 1187 (9th Cir. 1980); United

States v. Rosselli, 506 F.2d 627, 630 (7th Cir. 1974) (agents’

knocking at door, creating emergency, did not exempt them

from warrant requirement: “when the emergency justification

is advanced, we believe it is appropriate to appraise the

agents’ conduct during the entire period after they had a

right to obtain a warrant and not merely from the moment

when they knocked at the front door.”’)

The government’s reliance on our decision in United States

v. Vasquez, supra, in which we upheld a warrantless entry for

a security check, is misplaced since that decision was based

on several facts that are not present here. First, the pertinent

arrests in Vasquez took place on the street, within sight of

the fourth-floor apartment in question, thus creating the risk

at the outset that the arrests were known to those remaining

in the apartment. Further, the circumstances in Vasquez

made it quite reasonable for the agents to believe that

someone remained in the apartment. And finally, one of the

persons arrested on the street led the officers to an apartment

on the second floor and attempted to have the occupant of

that apartment give a false story on his behalf; the second-

floor occupant became hysterical and the ensuing commotion

could not help but alert anyone remaining in the fourth-floor

apartment. The commotion in Vasquez thus was not insti-

gated by the agents’ tactics but by the arrestee’s deceit.

5314

- .

. ee ee ee ee

a

In the present case, we agree with the conclusion of the

district court that a warrantless entry of 3D to conduct a

security check was not justified by the circumstances and

that that entry was therefore unlawful,

B. The Post-Worrant Evidence

Leaving aside for the moment the question of the evidence

discovered upon the unlawful entry into the apartment, see

C. infra, we turn to the question of the evidence discovered

in the apartment after the issuance of the search warrant,

The district court found that the warrant itself was valid,

but ruled that the illegality of the initial entry, coupled

principally with the unreasonableness of the delay in obtain-

ing the warrant, required the suppression of the evidence

discovered after the warrant was issued. We conclude that

our prior decision in United States v. Agapito, supra, is

controlling and requires the contrary result.

As discussed earlier, the agents in Agapito sought to justify

their warrantless entry into a hotel room asa security check

'0 prevent the destruction of evidence. We found the facts

insufficient to justify a security check and ruled tneir-entry

unlawful. Notwithstanding the purported desire of thé'Agap-

i10 agents to make a quick security check,’ when they found

the hotel room empty they did not simply secure it until a

search warrant could be obtained; they “moved in” and

remained there intermittently for nearly twenty-four hours

before a warrant was obtained. During their unlawful Stay

in the room the agents seized a suitcase, although they did

not at that time open it or otherwise search the room.

Eventually a search warrant, which we held to be valid, was

issued. Upon issuance of the warrant the agents searched the

suitcase and discovered one kilogram of cocaine. Notwith-

standing the illegal entry, the 24-hour delay in obtaining a

warrant, and the agents’ unlawful occupation of the room

for that lengthy period, we held that the cocaine found in

the suitcase should not be Suppressed because the cocaine

was discovered pursuant to a valid search warrant,

3315

We find no difference in the facts of the present case

sufficient to justify deviation from the result reached in

Agapito. Here, as there, there was an unlawful entry in

circumstances that did not justify the intended security check

of the premises; here the agents remained unlawfully on the

premises for nineteen hours prior to issuance of a search

warrant, as Compared with twenty-four in A gopito; here there

was a valid warrant, as there was in Agapito; and here, as

there, we deal with evidence discovered after the valid

warrant issued,

The only difference between the present case and Agapito

is that in Agapito the hotel room was empty, whereas there

wer: people in the Segura-Colon apartment, a difference we

do not consider material, The district court gave effect to

this difference by hypothesizing that, had there been. no

illegal entry, Colon and her companions might have de-

stroyed the evidence in the apartment prior to the issuance

of the warrant, The hypothesis that had it not been for the

unlawful entry perhaps no evidence would have been discov-

ered lawfully is unpersuasive, in part because it is based on

wholly speculative assumptions, such as (1) that having

decided not to enter the apartment until a warrant was

obtained, the agents would nevertheless have taken Segura

to the apartment and alerted Colon; or (2) that having

decided not to enter prior to obtaining a warrant the agents

would not have kept the apartment under surveillance; or

(3) that, once alerted, Colon would have sought to eliminate

the evidence (including valuable cocaine and more than

550,000 in cash) by destroying it within the apartment rather

than by removing it from the apartment, so that the agents

would have no opportunity to intercept persons removing

evidence; or (4) that the destruction of nearly three pounds

of cocaine, more than $50,000 in cash, numerous cellophane

bags, and documents would be achieved without the telltale

sounds of repeated toilet flushings or an odoriferous fire; or

(5) that a triple-beam scale and eighteen rounds of ammu-

nition could be destroyed silently,

$316

it

Further, we cannot uphold the district court's decision to

penalize the unlawful entry simply on the basis that persons

were in the apartment who might otherwise have destroyed

the evidence, because we find such a basis prudentially

unsound, Under Fourth Amendment jurisprudence the fact

that such persons were preseni—meaning that the agents

happened to be correct in one of the unsupported beliefs that

led therm to enter—does not legitimate the agents’ entry; the

reasonableness of the entry turns on the objective réasona-

bleness of the beliefs, not on their accuracy. The effect of the

district court's ruling, however, would be not only to pre-

clude the officers’ reliance on their happenstance accuracy,

but in fact to penalize them for that accuracy. That is,

upholding the district court's decision would mean that we

suppress the evidence when, as here, the agents happened to

be right in believing that there was someone in the premises

to destroy it, while we do not Suppress it where, as in

Agopito, the agents’ belief turned out to be wrong. We do

not believe the appropriate protection of Fourth Amendment

rights requires such an ironic twist.

In sum, Agapito is virtually indistinguishable from the

present case and requires that the evidence discovered’ pur-

suant to the issuance of the valid search’ warrant not be

suppressed, |

C. The Pre-Warrant Evidence

Finally, we reject the government's argument that the

evidence discovered during the unlawful security check

should not be suppressed because it was not actually “seized”

until after the search warrant was obtained. While Agapito

allows use of evidence discovered after the issuance of a

valid search warrant, it does not forbid suppression of

evidence discovered upon an unlawful entry prior to the

issuance of the warrant. We are not inclined to extend

Agapilo to allow use of the unlawfully discovered pre-warrant

evidence in this case where the agents literally and figura-

lively went out of their way to create the circumstances that

$317

~—m“s -——— — oom.

they contend constituted the emergency justifying entry. In

the words of United States v. Rosselli, supra, in which agents

similarly knocked at the suspects’ door and thus alerted

them,

[w]e do not suggest that the emergency which did

develop was contrived by the agents. They had a right

to pursue their investigation by seeking voluntary co-

operation from a suspect. But certainly the emergency

which did ensue was foreseeable. Moreover, this type of

situation may reoccur repeatedly and might lend itself

to too easy a by-pass of the constitutional requirement

that probable cause should generally be assessed by a

neutral and detached magistrate before the citizen's

privacy is invaded.

$06 F.2d at 630. Given the potential for abuse of the

emergency security check exception by officers who would

create their own emergencies, we believe it appropriate “ ‘to

compel respect for the constitutional guaranty in the only

effectively available way—by removing the incentive to dis-

regard it.’ Brown vy. Jilinois, 422 U.S. $90, 599-600 (1975),

quoting Elkins v. United States, 364 U.S. 206, 217 (1960).

Accordingly, we uphold the suppression of such evidence’as

was discovered upon the unlawful entry.

CONCLUSION

The order of the district court is affirmed insofar as it

suppressed items discovered prior to the issuance of the

search warrant, and reversed insofar as it suppressed items

discovered after issuance of the warrant,

700- 11-681 ¢ USCA-5673

WORLD COMPOSITION SERVICES, INC.,

432 Park Ave. S., N.Y. 10016 (212) 686-5200

$318

APPENDIX

"cr

At a stated Term of the United States Court of Appeals for the Second

Circuit, held at the United States Courthouse in the City of New York, on the

day of

one thousand nine hundred and eighty-two.

Present: jonoRABLE JAMES L. OAKES,

HONORABLE THOMAS J. MESKILL,

HONDRABLE AMALYA LD KEARSE,

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee,

; -¥. = Nos. 82-1062, 82-1064

ANDRES SEGURA and LUZ MARINA COLON, §$2-/06% |

Defendants-Appellants. 92-/ boy

N.B. Since this statement does not |

constitute a formal opinion:of this

court and is not uniformly available

to all parties, it shall not be

reported, cited or otherwise used in,

unrelated cases before this or any

other court.

Appeal from the United States District Court forthe Eastern

District of New York.

This cause came on to be heard on the transcript of record from the

nited States District Court for the Eastern District of

New York , and was argued by counsel,

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged,

and decreed that the judgment of said District

Court be andithereby is affirmed.

Defendants Andres Segura and Luz Marina Colon appeal

from judgments entered in the United States District Court for

the Eastern District of New York, after a jury trial before John

R. Bartels, Judge, convicting them of conspiring to distribute

cocaine, in violation of 21 U.S.C. § 846 (1976), and of

Gistributing and oe with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1). Finding no merit in any of

their contentions on appeal, we affirn.

1. Defendants contend that various items found in

their apartment and admitted at trial should have been suppressed

because they were seized pursuant to a search warrant that was

invalid in that it was procured on the basis of material

e,> © ~«— ae

: ‘ - - 5 * i> - 64 ie é

Ucn Ve Segura, Ce Bucy Nos. SCe-.061, C.-1004

misrepresentations. This issue is foreclcsed by reason of our

prior-ruling in this case in United States v. Segura, 663 F.24

411 (2d Cir. 1981). On the prior appeal, the government sought

to overturn a ruling of the district court suppressing all

evidence seized in the apartment of Segura and Colon. The

district court had ruled the search warrant valid, but had

Suppressed all evidence seized in the apartment on the ground .

that the initial entry of the government agents had been

unlawful. The government requested a reversal as to all of the

evidence seized, on the ground that the initial entry was ‘

necessitated by exigent circumstances, or alternatively a

reversal as to some of the evidence, on the ground that it was

discovered and seized pursuant to a valid search warrant issued

after the initial entry. Notwithstanding that the validity of

the warrant was the linchoin of the government's "fallback"

position, the defendants never argued that the search warrant was

invalid, although they were entitled to make such an argument in

Support of the suppression order. United States v. Swarovski,

957 F.2d 40, 49 (2d Cir. 1977) (citing Dandridge v. Williams, 397

U.S. 471, 475 n.6 (1970)), cert. denied, 434 0.5. 1005 (1978);

see Smith v. Phillips, 102 5. Cc. 940, 945 n.6 (1982). Even

after we accepted the government's alternative contention by

reversing the suppression of the evidence Seized after the

issuance of the warrant, Segura and Colon did not challenge the

validity of the warrant. They moved for rehearing, but asked

that we reconsider our ruling allowing use of "the evidence

discovered pursuant to the valid search warrant” solely on the

ground that the case we had found controlling, United States v.

Agapito, 620 F.2d 324 (24 Cir.), cert. denied, 449 U.S. 834

CLO had been wrongly decided. (Petition of Segura and Colon

for Rehearing, filed November 20, 1981, at 2.) Since Segura and

Colon had adequate opportunities on the prior appeal to present

their contentions as to the validity of the search warrant, we

See no reason not to rule that our prior decision as to that .

issue is the law of the case. See McClain v. United States, 676

P.2d 915, 917 (2d Cir. 1982).

'

Even if the attack on the validity of the warrant were

not foreclosed, however, we would reject it for lack of merit.

Defendants have pointed to no evidence to Suggest that the

district court should have found the misstatements in the a

affidavit seeking issuance of the search warrant to be deliberate

or reckless falsehoods. See Franks v. Delaware, 438 U.S. 154,

171-72 (1978). The misstatements alleged were the agent's

interpretations of statements made to him, and his interpretation

of Segura's use of the term "stuff" as referring to narcotics was

consistent with common usage in the trade. See, e.g., United

States v. Beltempo, 675 F.2d 472, 475 (2d Cir. 1962); Unite

states v. Martino, 664 F.2d 860, 874 (2d Cir. 1981). °

district court's implicit ruling that the variance between

Statements and interpretations was not material is not clearly

erroneous.

2. Segura and Colon also contend that the evidence at

trial was insufficient to Support their convictions. The

evidence included (1) the government agents’ observations of a

meeting between Segura and Enrique Rivdulla at a restaurant at

which neither they nor anyone accompanying them obtained food;

Segura's gesture to Colon who then left the restaurant with a

bulging pocketbook, entered the automobile of Rivdulla, and

as

USA v. Segura, et al., Nos. 82-1061, 81-1064

“a . —~

emerged moments later with no bulge in the purse; and the arrests

minutes later of Rivdulla and his companion with a half kilogram

of cocaine; and (2) the items found in the apartment of which

Segura and Colon were co-lessees, including one kilogram of

cocaine, $56,000 in cash, and a notebook apparently reccrding

transactions with, inter alios, "Enrique." Viewing the evidence

in the light most favorable to the government, Glasser v. United

States, 315 U.S. 60, 80 (1942), we conclude that a rational juror

could have concluded beyond a reasonable doubt that each

Gefendant was guilty of conspiracy to distribute cocaine and of

Cistribution of, and possession with intent to distribute,

cocaine. .

The judgments are affirmed.

THOMAS J. PRI

ae ene

AMALYA L. KEARSE,

: Circuit Judges

ANDRES SEGURA and LUZ MARINA COLON,

Petitioners,

v.

FQ-Saz 2

UNITED STATES OF AMERICA,

Respondent.

wm met See

AUG 2 7 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S.

MOTION TO PROCEED

IN FORMA PAUPERIS

Petitioners, Andres Segura and Luz Marina Colon, move

this Court for permission to file the petition for a Writ of

Certiorari and to further proceed in the Supreme Court of the

United States in forma pauperis. The annexed affidavits of Paul

E. Warburgh, Jr., Esq., and Peter J. Fabricant, Esq., support

the motion.

AXELROD & WARBURGH

Attorneys for Segura

370 Lexington Avenue

New York, New York 10017

(212) 689-8970

PETER J. FABRICANT, ESQ.

Attorney for Colon

370 Lexington Avenue

New Yor

, New York 10017

(212) 689-7776

EDWARD R. KORMAN, ESQ.

United States Attorney for the

Eastern District of New York

United States Courthouse P

225 Cadman Plaza East

Brooklyn, New York 11201

Solicitor General of the United States

United States Department of Justice

Washington, D.C. 20530

ANDRES SEGURA and LUZ MARINA COLON,

Petitioners, AFFIDAVIT IN SUP-

PORT OF MOTION TO

Vv. PROCEED IN FORMA

PAUPERIS

UNITED STATES OF AMERICA,

Respondent.

<8 «eee eee ee eee eee Hr rr rrr errr rr rrr rr rrr rr x

STATE OF NEW YORK

COUNTY OF NEW YORK

PETER J. FABRICANT, being duly sworn, deposes and says:

1. I am the attorney for the petitioner Luz Marina

Colon. She was convicted in the United States District Court for

the Eastern District of New York and her conviction was affirmed

by the Court of Appeals for the Second Circuit. I am filing here-

with a petition for a writ of certiorari to review the judgment in

the Second Circuit.

2. I represented petitioner in the Second Circuit as

assigned C.J.A. counsel. The appeal there proceeded in forma

pauperis. I am aware of nothing which has changed her financial

status, particularly since the petitioner has been incarcerated '

since her trial. Leave to proceed in forma pauperis in this Court

should be granted as well. ‘

ee |

Sworn to before me this

2e+¥tday of August, 1982.

iN’ THE SUPREME COURT OF THE UNITED STATES

ANDRES SEGURA and LUZ MARINA COLON,

Petitioners, AFFIDAVIT IN SUPPORT

OF MOTION TO PROCEED

v. IN FORMA PAUPERIS

UNITED STATES OF AMERICA,

Respondent.

STATE OF NEW YORK

COUNTY OF NEW YORK

PAUL E. WARBURGH, JR., being duly sworn, deposes and

says:

1. I am the attorney for the petitioner Andres Segura.

He was convicted in the United States District Court for the

Eastern District of New York and his conviction was affirmed by

the Court of Appeals for the Second Circuit. I am filing herewith

a petition for a writ of certiorari to review the judgment in the

Second Circuit.

2. I represented petitioner in the Sgcond Circuit as

assigned C.J.A. counsel. The appeal there proceeded in forma

pauperis. I am aware of nothing which has changed his financial

jstatus, particularly since the petitioner has been incarcerated

}since his arrest. Leave to proceed in forma pauperis in this

P sell ws tapes se “Ble te - fh

Sworn to before me this

26“ day of August, 1982.

, (i .

EO en a CAAA,

*

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