United States v. Ralph Joseph Palumbo

742 F.2d 656, 1984 U.S. App. LEXIS 18582

• Court: Court of Appeals for the First Circuit
• Decided: September 14, 1984
• Docket: 82-1102
• Status: Published

Opinions

BAILEY ALDRICH, Senior Circuit Judge.

In this proceeding Ralph J. Palumbo appeals his three-count conviction for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Although there was a warrant-less police entry and occupancy of Palumbo’s home subsequent to his arrest that violated the fourth amendment, it had no consequences, and we hold it did not taint items later discovered and seized as the result of independent probable cause and a valid warrant.

With the assistance of a police informer, a law enforcement team comprised of officers from the Maine State Police, the New Hampshire State Police, and the federal Drug Enforcement Administration (DEA), arranged to purchase ten ounces of cocaine from Palumbo’s codefendant Robert Walker.¹ During telephone conversations between Walker and the informant, John Bradley, setting up the sale, Walker identified Palumbo as his source of supply. Walker agreed to consummate the deal on July 14, 1981, in Salem, New Hampshire. The law enforcement team commenced surveillance of Walker on July 14. Trooper Williamson of the New Hampshire State Police observed Walker’s car leave the Palumbo residence and drive to the place designated for the sale, the Salem Inn. Bradley and DEA agent Gerald Graffam, who was working undercover as informant Bradley’s driver, displayed $25,000 in a briefcase to Walker. Walker then stated that Palumbo did not want to travel to Salem and the sale would be completed in Dover, New Hampshire. Dover is about five miles from Palumbo’s home in Berwick, Maine.

Later that day, at approximately 5:00 p.m., Walker and Bradley met in the lounge of the Ramada Inn in Dover. After a brief conversation, Walker left the Inn. Trooper Williamson, utilizing aerial surveillance, observed him drive to the Palumbo home and pick up Palumbo. Walker’s automobile was shortly thereafter seen in the parking lot of the Ramada Inn. Informant Bradley entered the Walker car where Walker and Palumbo were sitting and a brown paper bag was passed to Bradley. After observing a white powder in the bag, Bradley gave the signal and Palumbo and Walker were arrested. At the moment of the arrest, informant Bradley was in the back seat with the package of white powder and the empty briefcase. A field test revealed the powder to be cocaine.

The arrests occurred at approximately 6:00 p.m. A short time later, it was decided to obtain a search warrant for the Palumbo home in Berwick, Maine. A search warrant was authorized at approximately 11:00 p.m. by a Maine state judge.

We pause here to address plaintiff’s contention that there were intentional or reek-less misstatements in the affidavit for the warrant, which statements were necessary to the determination of probable cause. The court held a hearing under Franks v. Delaware, 1978, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667, and found that, in fact, certain intentional misstatements had been made. Nevertheless, it held that, even excluding these statements, the affidavit established probable cause. We agree.

Stripped to its essentials, and without the misstatements, the affidavit still established that (1) Walker stated Palumbo was his source for cocaine, (2) prior to the transaction, Walker stated that Palumbo had asked that the meeting place be changed from Salem to Dover, New Hampshire, a place nearer Palumbo’s home, (3) Walker was observed travelling to Palumbo’s home immediately prior to the transaction, and returning toward the Ramada Inn in Dover with Palumbo, and (4) Walker and Palumbo transferred cocaine to the government informant at the Dover Ramada Inn. Warrant affidavits are to be read in a common sense manner. United States v. Ventresca, 1965, 380 U.S. 102, 109, 85 S.Ct. 741, 746,13 L.Ed.2d 684. Here we have no trouble finding the magistrate had a “substantial basis” for concluding, see Illinois v. Gates, 1983, 462 U.S. 213, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, that there was “reasonable cause to believe” there was evidence of Palumbo’s cocaine dealing inside his home. See Zurcher v. Stanford Daily, 1978, 436 U.S. 547, 556-57, 98 S.Ct. 1970, 1976-77, 56 L.Ed.2d 525. The warrant was therefore valid, despite the misdirected effort of the police.

At the same time that the officers decided to obtain a search warrant, they also decided to “secure” the Palumbo home pending application for, and the authorization of, the warrant. Apparently this decision was communicated to Assistant District Attorney Libby, who approved it. The reason DEA agent Graffam gave at the suppression hearing for “securing” the Palumbo home prior to obtaining a warrant was that, prior to the transaction, a check of the DEA computer indicated that Donna Palumbo had been rumored to be in the drug trafficking business with her husband. Graffam felt that Palumbo would have been expected home by his wife shortly after the drug sale and, if he did not show up within a reasonable time, she would assume something had happened to him and destroy any drugs in the house. She might also learn of trouble directly, there being numerous witnesses at the Ramada Inn watching the arrest, and Palumbo being fairly well-known in the area.

The police had no affirmative evidence to back up these apprehensions, and we consider it a rather thin case of exigent circumstances, which should be anything but automatic. We do note, in passing, that defendant’s complaint that the police were ignorant as to whether Mrs. Palumbo was at home is unjustified. As a result of knocking they knew she was home prior to entering, and there is no evidence that they planned a forceful entry if the house was vacant.

Sometime between 6:30 and 7:00 p.m., a contingent of police officers went to the Palumbo home. When Mrs. Palumbo opened the door, two officers showed their badges, entered the house without consent, and informed her they had probable cause to search the house and were awaiting the arrival of a search warrant. Three or more officers, also in plain clothes, then entered the Palumbo residence. Mrs. Palumbo demanded to see a warrant. After the officers said one was coming, Mrs. Palumbo ordered them out of her home, but they refused, telling her that they were “securing the premises” in anticipation of the arrival of the warrant. Mrs. Palumbo asked if she and her two teenage children could leave and she was told that her children could leave, but that she could not.

The Court has noted that “imminent destruction, removal, or concealment of the [evidence] to be seized” may be one type of exigent circumstance which would justify Warrantless entry into a dwelling. United States v. Jeffers, 1951, 342 U.S. 48, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59; Johnson v. United, States, 1948, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436. We have so held. United States v. DiGregorio, 1 Cir., 1979, 605 F.2d 1184, 1188, cert. denied, 444 U.S. 937, 944, 983, 100 S.Ct. 287, 302, 489, 62 L.Ed.2d 197; United States v. Edwards, 1 Cir., 1979, 602 F.2d 458, 468. When such an exigency is found, however, the least restrictive intrusion is to be adopted, or thé whole constitutional requirement for obtaining a warrant would be defeated. When it is known that no one is presently on the premises, they may be secured merely by guarding the entrances. Cf. United States v. Agapito, 2 Cir., 1980, 620 F.2d 324, 337 cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40; United States v. Young, 8 Cir., 1977, 553 F.2d 1132, 1134, cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278. When persons are present and such persons may reasonably be feared to pose a substantial threat to destroy evidence, more intrusive action may be proper. Cf. United States v. Edwards, ante, 602 F.2d at 461. Even then, the police might be well advised to give the occupants a choice of exiting the premises. See United States v. DiGregorio, ante, 605 F.2d at 1188 n. 3. This might be accompanied by “a very quick and limited pass through the premises to check for third persons who may destroy evidence.” United States v. Agapito, ante, 620 F.2d at 335.

Even assuming the police here had sufficient grounds to enter and “secure,” at least to a minor extent they acted excessively. Upon entry, they fanned out through the house, outside the sight of the Palumbo family in the kitchen — Mrs. Palumbo, Mr. Palumbo, Sr., and children. A brief look around might be justified to check whether other persons were present, United States v. Agapito, ante, but they went further, and, at the least, searched Mr. Palumbo Sr.’s carry bag upstairs. The court also found that one officer conducted a limited search of the kitchen hutch. While this last might be justified as a safety check, the upstairs searching was not excusable.

We pass over the rest of the evening. The Palumbos ultimately were allowed to leave after a search of what they elected to take with them. We need not address the propriety of these searches, except to note them presumably consistent with the goal of preserving evidence. Perhaps fortunately for the police, they failed to discover evidence in any of their searches, and nothing that they observed was contained in the application for the warrant. When, sometime nearing midnight, a new contingent of police arrived with a proper warrant, the house was dark, with the initial officers sitting outside. A new, and more thorough search was then instituted. No cocaine or other drugs were found, but guns, scales, weights, an empty can said to have contained cutting agents, a leatherette pouch containing glass vials, and a handscale and other items were seized. The question is whether, assuming the earlier police action was unlawful, the court erred in denying Palumbo’s motion to suppress these articles.

The exclusionary rule is a well settled penalty designed to discourage improper police behavior by the practical expedient of preventing the use of what had been wrongfully obtained. From the standpoint of the guilty defendant even this, in a sense, is a windfall; there is no reason why the penalty should go beyond the offense. The Court has long held that not all evidence linked to an unlawful search is inadmissible. As early as Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, the Court stated,

“If knowledge of [facts] is gained from an independent source, they may be proved like any other, but the knowledge gained by the government’s own wrong cannot be used by it.”

This statement was paraphrased by J.M. Maguire, Evidence of Guilt, 221 (1959), quoted with approval in Wong Sun v. United States, 1963, 371 U.S. 471, at 488, 83 S.Ct. 407, at 417, 9 L.Ed.2d 441.

“Bather, the more apt question in such a case 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 distinguishable to be purged of the primary taint.’ ”

In other words, bad conduct condemns the consequences of bad conduct, but there is no reason for it to spill over and affect consequences, even if they were the same, of truly independent good conduct.

Invocation of the independent source rule may take various forms. The broadest is expressed by the term “inevitable discovery,” a principle we recognized in United States v. Bienvenue, 1 Cir., 1980, 632 F.2d 910, 913-14. There the police wrongfully searched the defendant’s residence and found check stubs and other materials which led them to a travel agency where incriminating evidence was found. Even though this evidence was discovered as a direct result of unlawful conduct, and would, for that reason, normally be suppressed, we declined to do so because of the court’s finding that the police would have visited travel agencies anyway, because of information lawfully obtained. The initial, unlawful seizure of the travel agency items did not irretrievably taint them; they became usable upon proof that they would inevitably have been discovered by proper means.

In this we were following our earlier case of McGarry’s Inc. v. Rose, 1 Cir., 1965, 344 F.2d 416, 418-19, aff'g Lord v. Kelley, D.Mass., 1963, 223 F.Supp. 684, where, at 691, Judge Wyzanski put it simply-

“The owner of the records is entitled to be as well off as if Flattery had not unlawfully seized those papers, but he is not entitled to be any better off.”

See also McGarry v. United States, 1 Cir., 1967, 388 F.2d 862, 870-71, cert. denied, 394 U.S. 921, 89 S.Ct. 1178, 22 L.Ed.2d 455.

The independent source rule is to be applied strictly. If the article is found initially as a result of the wrongful conduct, it is insufficient to show that it could have been found independently, it must be shown that it would have been. United States v. Finucan, 1 Cir., 1983, 708 F.2d 838, 843. The fact, however, that it remained in police custody at all times thereafter does hot preclude removal of the taint by proof that the discovery would have been inevitable. United States v. Edwards, ante, 602 F.2d at 469 n. 12 (alternative holding); United States v. Segura, 2 Cir., 1981, 663 F.2d 411, 416, cert. granted, 459 U.S. 1200, 103 S.Ct. 1182, 75 L.Ed.2d 430; United States v. Beck, 8 Cir., 1981, 662 F.2d 527, 530; see United States v. Allard, 9 Cir., 1980, 634 F.2d 1182, 1184-85. Two courts, however, have recognized that this might present a special problem: the original probable cause would have led to the right spot, but, had it not been for the wrongful detention, the article might no longer have been there. In such event, the wrongful seizure would have contributed to the apprehension.

In United States v. Allard, ante, the court found that there was insufficient cause to justify a warrantless entry to secure. It recognized the government’s right to prove inevitable discovery, and stated this right was not lost by continuous improper possession. It held, however, that the motion to suppress should have been granted because “the government [failed to] demonstrate that the seizure made no practical difference.” “For instance, the government [did not] prove that under the circumstances the evidence would not have been moved” but for the government’s act. 634 F.2d, ante, at 1187.

In United States v. Segura, ante, on the other hand, the court recognized this issue, but concluded, on the facts, that it was unlikely that the defendant would have disposed of the evidence, and so denied the motion. 663 F.2d, ante, at 416.

The Allard rule imposes a difficult, if not impossible burden on the government, in effect eviscerating the independent source rule. We would take a different approach. Either the occupants are going to dispose of the evidence, or they are not. If, on the court’s view, the police had adequate grounds to fear disposition, their entry would have been justified. If they had inadequate grounds, should it not follow, unless the defense sought to prove the contrary, that the probability was that the evidence was not going to be disposed of? Where all other elements of the independent source rule were established, we consider that the Allard court whipsawed the government.

There is, however, another aspect, illustrated by Segura. The police there restrained defendant a total of 19 hours awaiting the warrant, 18 of which were consumed by “administrative delays” prior to making application. Confining a defendant in, or excluding him from, his premises for so long a period, especially for mere administrative convenience, might seem a gross abuse. An erroneous entry to secure, at least if done in good faith, might well be forgiven by application of the independent source rule; all that defendant suffered in such case, and all the police did wrong, was a premature entry. On the other hand, the abuse of a grossly excessive detainer, indicating police indifference to a need for dispatch, is a different taint, and might well be penalized by denying the police a cure by independent source. See generally Note, Police Practices and the Threatened Destruction of Tangible Evidence, 84 Harv.L.Rev. 1465, 1478 (1971).

We need not decide this question, because we would not apply that principle here. The present case easily satisfies the independent source rule. The warrant was based entirely upon probable cause learned prior to the original entry, and defendant has not even claimed that the evidence, physical objects much more cumbersome than drugs, would have been somehow disposed of had there been no prior entry. Five hours does not seem an excessive amount of time to obtain the warrant under the circumstances. Cf. United States v. DiGregorio, ante (8 hours). It may also be wondered whether, where defendant was at all times under arrest elsewhere, and not in any sense affected by the delay, he had standing to complain of any overstaying. He, of course, had none to complain of the search of his father’s bag.

In deciding Segura, where the granting of certiorari has already been followed by argument, the Court may well answer these and many other questions. In the meantime we hold that at least when an unjustified entry to secure is done in good faith, with a reasonable, although insufficient excuse, the independent source rule can be applied unless there is affirmative evidence warranting a finding that, but for the entry, the articles would have been moved or disposed of, or it appears that the entry was unreasonably prolonged, to defendant's disadvantage. There was at least enough excuse here to satisfy our test.

Affirmed.

1 . Although defendants Palumbo and Walker were tried jointly, this appeal is pressed by Palumbo alone. Codefendant Walker’s appeal, involving a variety of issues, has already been decided. See United States v. Walker, 1 Cir., 1983, 706 F.2d 28.