Appeal from a judgment of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, granting petitioner-appellee's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Reversed.
Hays, Timbers and Gurfein, Circuit Judges.
Petitioner-appellee, Orlando Rodriguez, was indicted by the State of New York and convicted after trial before a jury of criminal possession of a dangerous drug (cocaine) in the first degree in violation of section 220.20 of the New York Penal Law. N.Y. Penal Law § 220.20 (McKinney 1967).*fn1 His conviction was unanimously affirmed without opinion by the Appellate Division, Second Department, 40 A.D.2d 763, 336 N.Y.S.2d 436 (2d Dept. 1972), and leave to appeal to the New York Court of Appeals was denied on November 2, 1972. In March, 1973 petitioner applied to the United States District Court for the Southern District of New York for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging several grounds upon which he claimed that his conviction was constitutionally infirm.*fn2 Of these numerous allegations the district court found in favor of petitioner on one, a claimed Fourth Amendment violation stemming from the manner of entry employed to effect Rodriguez's arrest, and granted the writ. All other grounds were properly rejected. The district court directed the state either to retry petitioner or release him from custody within 60 days. A stay of this order was granted upon the state's filing of a notice of appeal. We reverse the district court's grant of habeas corpus relief.
Petitioner's arrest at his apartment at 250 North Broadway, Yonkers, was the product of an investigation into a large-scale narcotics conspiracy believed to be centered in Yonkers. On January 13, 1969 wiretap intelligence revealed that one Daniel Gonzalez, also a resident of 250 North Broadway, would be going that night with two other men to pick up a quantity of narcotics. Shortly before midnight on January 13, members of the Yonkers and New York City Police Departments, the Sheriff's Office and Lawrence Martin, an Assistant Westchester County District Attorney, maintained a surveillance in the area of 250 North Broadway. Search warrants had been obtained for designated apartments, persons and cars. One warrant was for Gonzalez's apartment; no warrant applied to petitioner.
Before executing the search warrant for Gonzalez's apartment, officers questioned the superintendent of the apartment house. The superintendent informed them that Gonzalez was friendly with Rodriguez. Indeed, the superintendent reported that the two men often used a fire escape to travel back and forth between Gonzalez's third floor apartment and Rodriguez's second floor apartment. When Martin went to the Gonzalez apartment, he learned that Gonzalez had not yet returned from the suspected narcotics pick-up mission. Walkie-talkie communication with officers surveilling the building advised Martin that Gonzalez was on his way upstairs in the company of two men. Moments later, Gonzalez and one of the men with whom he had entered the building reached Gonzalez's third floor apartment. Both Gonzalez and his companion were arrested but no narcotics were found in their possession.
The third person who had entered 250 North Broadway with Gonzalez was seen to be carrying a package. When he exited from the elevator on the second floor an investigator followed him to an apartment which was rented in the name of Rodriguez. This information was relayed to Martin who then conferred with Investigator Garcia, the officer who had listened to Gonzalez's wiretapped telephone. Martin informed Garcia of the superintendent's account of the relationship between Gonzalez and Rodriguez and the fact that the third man in Gonzalez's company had entered the Rodriguez apartment. Garcia told Martin of conversations he had intercepted between persons who allegedly were connected with the conspiracy under investigation, conversations which had disclosed that Gonzalez and a man named Rodriguez served as couriers for other named members of the narcotics ring. Garcia also reported that Gonzalez and Rodriguez had been arrested in New Jersey several days earlier on narcotics charges. Upon receiving this information Martin directed representatives of the Westchester County Sheriff's Office to arrest Rodriguez.
Entry into Rodriguez's apartment was effected by use of a passkey obtained from the superintendent. No knock or announcement of authority and purpose preceded the arresting officers' entry into the apartment. The entry took place around 3:00 A.M. Officers immediately placed Rodriguez, who was then in the living room, under arrest. His wife was also arrested.*fn3 Proceeding to search the apartment, officers discovered a glassine bag in the bathroom similar in size to the bag Rodriguez had been seen carrying. The bag contained 10.5 ounces of cocaine. A weighing scale was found on the kitchen counter and a rolled-up dollar bill with traces of white powder was found tucked between the cushions of a chair in the living room.
The district court found that the state trial court could reasonably conclude that probable cause existed for petitioner's arrest and that the search incident thereto was lawful under the standards then governing such searches.*fn4 The district court nonetheless held that all tangible evidence seized from Rodriguez's apartment should have been suppressed because the mode of arrest -- the police officers' unannounced entry -- violated the Fourth Amendment. We disagree.
The constitutional standard governing entries by state authorities to arrest or search is neither precisely fixed nor readily amenable to pat verbal formulations. The Fourth Amendment protects only against "unreasonable searches and seizures" and, as the Supreme Court has long recognized, standards of reasonableness "are not susceptible of Procrustean application." Ker v. California, 374 U.S. 23, 33, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963). Whether the activity complained of in any given case meets the Fourth Amendment standard of reasonableness is inextricably tied to the facts and circumstances of that case.
At the outset we note that the legality of entry to effect an arrest is a question quite distinct from whether the arrest was properly based upon probable cause or an arrest warrant. An illegal entry to effect an otherwise lawful arrest taints a search incident to such arrest. United States v. Davis, 461 F.2d 1026, 1034 (3d Cir. 1972); United States v. Cisneros, 448 F.2d 298, 303 n.6 (9th Cir. 1971). If entry is found to have been accomplished in a manner violating the Fourth Amendment, evidence seized as a result of the unlawful entry is inadmissible against one who has standing to complain. See, Sabbath v. United States, 391 U.S. 585, 20 L. Ed. 2d 828, 88 S. Ct. 1755 (1968); Ker v. California, supra, 374 U.S. at 34.
The lawfulness of entry by state officers to arrest for offenses against the state is determined by reference to state law, subject, of course, to the protections set forth in the Constitution. Ker v. California, supra, 374 U.S. at 37. See United States ex rel. Lupo v. Fay, 332 F.2d 1020, 1022 (2d Cir. 1964), cert. denied, 379 U.S. 983, 13 L. Ed. 2d 573, 85 S. Ct. 693 (1965). In a habeas proceeding detailed explication of the state's law is often unnecessary as reference may be had to the state judiciary's determination of the case. In the instant case, however, because the Appellate Division affirmed without opinion and the Court of Appeals denied leave to appeal, we begin by briefly reviewing New York law on the announcement requirements.
At the time of petitioner's arrest section 178 of the New York Code of Criminal Procedure provided that, to effect an arrest, "the officer may break open and enter an inner door or window of a building, if, after notice of his office and purpose, he be refused admittance." (emphasis added).*fn5 There can be no doubt that the officers' entry into Rodriguez's apartment failed to comply with the requirements of section 178. No announcement of office and purpose was made and unquestionably entry by passkey is tantamount to a "breaking" for purposes of triggering the announcement requirements. Sabbath v. United States, supra 391 U.S. at 590; Ker v. California, supra 374 U.S. at 38; People v. Floyd, 26 N.Y.2d 558, 312 N.Y.S.2d 193, 260 N.E.2d 815 (1970).
New York courts, however, have held entries in technical violation of the announcement requirements to be lawful if exigent circumstances exist, People v. Floyd, supra 26 N.Y.2d at 562; People v. Gallmon, 19 N.Y.2d 389, 396 n.1, 280 N.Y.S. 2d 356, 362 n.1, 227 N.E.2d 284 (1967) (Fuld, J., dissenting), cert. denied, 390 U.S. 911, 88 S. Ct. 832, 19 L. Ed. 2d 884 (1968); People v. Cage, 40 App. Div. 2d 234, 339 N.Y.S.2d 6 (3d Dept. 1972); People v. McIlwain, 28 App.Div.2d 711, 281 N.Y.S.2d 218 (2d Dept. 1967), and apply the exigent circumstances doctrine to excuse noncompliance with announcement requirements when the officers reasonably believe such action is necessary to prevent the destruction of evidence. See, e.g., People v. Richardson, 36 App.Div.2d 603, 318 N.Y.S.2d 891, 894 (1st Dept.), aff'd, 29 N.Y.2d 802, 327 N.Y.S.2d 364, 277 N.E.2d 412 (1971) (possibility of destruction of contraband justified unannounced entry); People v. E., 38 A.D.2d 394, 330 N.Y.S.2d 3, 6 (2d Dept. 1971), aff'd, 30 N.Y.2d 884, 335 N.Y.S.2d 435, 286 N.E.2d 919 (1972) (presence of easily destructible evidence excused failure to make prior announcement); People v. McIlwain, supra (rustling noises within and sound of toilet flushing following officer's knock justified immediate entry without announcing authority and purpose). Cf. People v. Floyd, supra (suppression granted; no reason to believe that contraband present within at time no-knock entry effected). Moreover, New York statutory law at the time of petitioner's arrest also provided that search warrants could issue with ...