# Petition — Segura v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1296%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 468 U.S. 796 ## Text 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 Citations to Opinion Below......... cece ccccccces PUESRGASCIGE. woe y ccc ccse Chee od epibe cvetisevethreste SLOG PEOWOMCOE. oo sens civokowherc es shee euMee PEOVESLORS TVOIWOE soo cccccceccctetosevedetesese DEBTS ccc cde temavtservictvesivitengesandoeegawn Reasons for Granting Che WEA. ..cccccccsdnssesedes LE ee ee ee ee, Sa ee 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 ¢ 1 rH aah 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 | ) 5 gi a ‘ ee i ee ene ee 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. , Se ae Pees ae it we a ee —~s — > -—_ os 7 7FT. > _ 2 ae ae = .. | uo ——— > Oi , * [ = 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 - 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. —— —. 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 _—.) 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. < --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1296%3A1. Public record. Not legal advice.