United States v. Kon Yu-Leung

910 F.2d 33, 1990 WL 107424
CourtCourt of Appeals for the Second Circuit
DecidedJuly 25, 1990
DocketNo. 349, Docket 89-1281
StatusPublished
Cited by28 cases

This text of 910 F.2d 33 (United States v. Kon Yu-Leung) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kon Yu-Leung, 910 F.2d 33, 1990 WL 107424 (2d Cir. 1990).

Opinion

MAHONEY, Circuit Judge:

The government appeals, pursuant to 18 U.S.C. § 3731 (1988), from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Chief Judge, granting defendant-appel-lee John Ruotolo’s motion to suppress physical evidence seized from his home during a consent search. The district court granted Ruotolo’s motion because Ruotolo was not informed, at the time he consented to the search, that he had been indicted. The district court determined that a postin-dictment consent to a search is a critical stage of a criminal litigation to which the sixth amendment right to counsel accordingly attaches, and that Ruotolo could neither knowingly and intelligently decide whether to proceed without counsel nor validly consent to the search without being informed that he was under indictment.

We reverse and remand for a determination whether Ruotolo’s consent was voluntarily given. We conclude that a consent to a search is not a critical stage of a criminal litigation. Accordingly, the sixth amendment right to counsel is inapplicable, and a fourth amendment analysis as to voluntariness is appropriate.

Background

On March 13, 1988, John Ruotolo was arrested at his home in Montclair, New Jersey pursuant to an arrest warrant which had been issued December 21, 1987. The consent search of his home that ensued shortly after his arrest is the subject of this appeal.

On December 21, 1987, the same day the arrest warrant was issued, a grand jury in [35]*35the Eastern District of New York returned a sealed, fourteen-count indictment that charged Ruotolo and nine other defendants with, inter alia, conspiring to import substantial quantities of heroin into the United States from southeast Asia between January, 1984 and December, 1987. The Drug Enforcement Administration (“DEA”) planned to arrest the indictees the evening of March 13, 1988. The scenario called for the initial arrest of the leader of the organization, Kon Yu-Leung, followed in quick succession by the arrest of the other defendants worldwide.

Accordingly, between 8:00 and 9:00 p.m. on the evening of March 13, 1988, six DEA agents went to the vicinity of Ruotolo’s home with the warrant for his arrest, and awaited word of Kon Yu-Leung’s arrest. The agents wore civilian clothes and did not have their badges displayed. Upon being advised that Kon Yu-Leung had been arrested, the agents proceeded with Ruoto-lo’s arrest at approximately 11:00 p.m. Agent Michael Pasterchick, who led the Ruotolo arrest, went to the side door of the house with four other agents, and the remaining agent went to the back of the house. Pasterchick, with his gun hidden but drawn, knocked on the door, which was answered by Ruotolo’s thirteen-year-old daughter. Without identifying himself as a police officer, Pasterchick inquired as to Ruotolo’s whereabouts. The daughter responded that her father was in the kitchen. She led Pasterchick to the kitchen, where he identified himself, as a federal agent and arrested Ruotolo, placing him in handcuffs.

Pasterchick had been advised that Ruoto-lo, who had been a police officer in New York City for approximately twenty years, would most likely have numerous weapons in the house. Upon inquiry, Ruotolo confirmed the presence of guns. Ruotolo also told Pasterchick that his wife and two other children were in the house. Mrs. .Ruoto-lo and the other children were summoned to the kitchen. Subsequently, Mrs. Ruoto-lo and the children were taken to a “library-type room” by a female agent.

Pasterchick and four other agents conducted a security sweep of the house, accompanied by Ruotolo. The agents found a loaded gun on top of the armoire in Ruotolo’s bedroom. Ruotolo told them about a second gun in one of his sports jackets, and that weapon was also seized. The agents unloaded both guns and finished the sweep in approximately ten minutes. During the security sweep, the sixth agent remained with Mrs. Ruotolo and the children downstairs. At the conclusion of the sweep, which was conducted with weapons drawn, all agents holstered their guns.

The agents and Ruotolo returned to the kitchen, where Pasterchick read Ruotolo, from a printed card, the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked him whether he wished to answer any questions and would consent to a search of the house. Ruotolo responded, “I am not sure that I should answer any questions or if I should let you do a search of my home before talking to my lawyer. I don’t have anything to hide, but I am not sure.” Pasterchick responded, “Fine,” but told Ruotolo that because of the ongoing investigation and arrests, he would not be allowed to make any telephone calls and therefore could not contact his attorney. Pasterchick then telephoned fellow agents to advise them that Ruotolo was under arrest and had declined to allow a search of his home, and to request that they proceed to obtain a search warrant. Pasterchick testified that he was aware that affidavits had been prepared in advance to obtain a search warrant for Ruotolo’s home, should that prove necessary.

After making the call, Pasterchick returned to the kitchen and told the Ruotolos that arrangements were being made to obtain a warrant. He stated that the agents would remain in the house until he was advised whether a search warrant would be obtained. Ruotolo then initiated a conversation with Pasterchick regarding a consent search. Ruotolo asked Pasterchick whether his consent to a search would expedite matters, and, if so, whether Mrs. Ruotolo and he would be allowed to accompany the agents during the search. Although Pasterchick stated that a warrant [36]*36was being obtained and he was accordingly indifferent to Ruotolo’s consent to a search, Pasterchick also agreed that the agents would leave upon the conclusion of the search, and that the Ruotolos would be permitted to accompany the DEA agents during the search. Some time during the course of this dialogue, the agents cuffed Ruotolo’s hands in front of, rather than behind, him to permit him to smoke cigarettes.

Ruotolo discussed the situation with his wife, and then consented to a search. Pasterchick then went to his car to obtain a consent form that he filled out and read aloud to Mr. and Mrs. Ruotolo, who both signed the form. The consent form was signed at 12:05 a.m. on the morning of March 14, 1988. Aside from the title and signatures, it read as follows:

I, John Ruotolo and Gail Ruotolo, having been requested to consent to a search of my residence located at 1 Stonebridge, Montclair, NJ and having been duly advised of my constitutional rights to (1) refuse such consent, (2) to require that a search warrant be obtained prior to any search, (3) that if I do consent to a search, any evidence found as a result of such search, can and will be used against me in any civil or criminal proceedings, (4) that I may consult with an attorney of my choosing before or during the search and (5) that I may withdraw my consent to search at any time prior to its conclusion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kaminsky v. Schriro
243 F. Supp. 3d 221 (D. Connecticut, 2017)
United States v. Bohannon
67 F. Supp. 3d 536 (D. Connecticut, 2014)
United States v. Cummings
764 F. Supp. 2d 480 (E.D. New York, 2011)
United States v. Plugh
522 F. Supp. 2d 481 (W.D. New York, 2007)
State v. Monroe, Unpublished Decision (3-22-2007)
2007 Ohio 1492 (Ohio Court of Appeals, 2007)
Wilson v. State
952 So. 2d 564 (District Court of Appeal of Florida, 2007)
United States v. Gilkeson
431 F. Supp. 2d 270 (N.D. New York, 2006)
United States v. James
415 F. Supp. 2d 132 (E.D. New York, 2006)
United States v. Scott Ansaldi, Rodney Dean Gates
372 F.3d 118 (Second Circuit, 2004)
United States v. Wilkerson
76 F. App'x 657 (Sixth Circuit, 2003)
United States v. Cooney
26 F. App'x 513 (Sixth Circuit, 2002)
State v. Mata
30 S.W.3d 486 (Court of Appeals of Texas, 2000)
United States v. Grimes
67 F. Supp. 2d 170 (W.D. New York, 1999)
United States v. Heatley
994 F. Supp. 477 (S.D. New York, 1998)
United States v. Perez
948 F. Supp. 1191 (S.D. New York, 1996)
United States v. Brisbane
931 F. Supp. 245 (S.D. New York, 1996)
United States v. Ramirez
903 F. Supp. 587 (S.D. New York, 1995)
United States v. George E. Garcia
56 F.3d 418 (Second Circuit, 1995)
United States v. Shlater
873 F. Supp. 162 (N.D. Indiana, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
910 F.2d 33, 1990 WL 107424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kon-yu-leung-ca2-1990.