The opinion of the court was delivered by: MOTLEY
Indictment 79 Cr. 772 charges defendants James Petrone and Daniel Milano in six counts, and defendant Joseph Cunzio in two counts, with conspiracy to possess and distribute heroin, and with the possession and distribution of at least three kilograms of heroin all in violation of 21 U.S.C. §§ 846, 812, and 841.
Defendant Petrone moved for an order, pursuant to Rule 41(f) of the Federal Rules of Criminal Procedure, suppressing all evidence directly or indirectly obtained from the seizure and search of defendant's home on October 25, 1979. Defendant Cunzio filed three motions: 1) a motion to suppress evidence seized from his residence; 2) a motion to suppress his statement made to an Assistant United States Attorney; and 3) a motion to sever his trial.
On January 2, 1980, the above motions were denied. In accordance with the court's orders of that date, the present memorandum opinion accompanies the court's orders denying the motions.
Petrone's Motion to Suppress
Defendant Petrone moved for an order, pursuant to Rule 41(f) of the Federal Rules of Criminal Procedure, suppressing all evidence directly or indirectly obtained from the seizure and search of defendant's home on October 25, 1979. An evidentiary hearing on Petrone's motion revealed the following facts:
Agents of the Drug Enforcement Administration arrested Petrone on October 25, 1979, outside his home. (No challenge has been raised by Petrone as to the probable cause for the arrest.) Special Agent White was aware that persons were inside Petrone's home. The agents then brought Petrone back into his home, thereby preventing removal or destruction of evidence, while awaiting the issuance of a search warrant. While inside the home, the agents assembled Petrone's family in one room, asked a visiting friend to leave, and prevented Petrone's relatives from entering the premises. In short, the agents sealed off the premises and awaited authorization to search. While awaiting the issuance of a warrant, the agents in Petrone's home watched a football game on television.
Special Agent Pavlick meanwhile traveled to the United States Attorney's office and then to Magistrate Gershon's residence in order to secure search warrants. After the warrants were issued, Pavlick and Assistant United States Attorney Baskin phoned the agents in Petrone's home and informed them of the content of the warrant. Upon being informed that a warrant had been issued, Petrone led the agents to the money and gun at issue in this motion. While there is some dispute as to the time when the phone call to the agents was made, Petrone testified that the phone call preceded the search. In any event, the agents, after receiving the phone call, truthfully informed Petrone that a valid warrant had been issued.
Given the facts as described above, Petrone's motion to suppress must be denied. Under Second Circuit law, the agents were authorized not only to seal the Petrone residence but also, if they had so chosen, to conduct a search without waiting for a warrant. For example, in United States v. Pino, 431 F.2d 1043, 1045 (2d Cir. 1970), cert. denied, 402 U.S. 989, 91 S. Ct. 1675, 29 L. Ed. 2d 154 (1971), the Second Circuit approved a warrantless search for contraband inside an apartment:
The agents could not know what other persons might be operating with (the arrested defendants) and what dangers would be risked if one of them established a watch at the apartment while the others proceeded to book and lodge (the defendants) and then proceeded to swear out a search warrant much later that morning.
Delay in searching the apartment in this case would not only have been dangerous for the officer left to guard the apartment, but also would have greatly increased the likelihood that the heroin would either be destroyed or even more likely eventually find its way on to the streets. Thus this was a situation where . . . "the inherent necessities of the situation at the time of arrest" . . . required an immediate search of the entire apartment for the narcotics still there.
See also United States v. Lozaw, 427 F.2d 911, 917 (2d Cir. 1970) (Lumbard, C. J., concurring) (joined by Hays, J.).
In the case at hand, the agents knew that persons remained inside the Petrone home, and under Second Circuit law the agents probably could have seized the evidence without obtaining a warrant. Accordingly, the agents certainly had authority to follow a far less intrusive policy of merely preventing others from leaving with, hiding, or destroying evidence, while the agents waited for a warrant to be issued. The agents, much to their credit, exercised restraint in following what was, under the circumstances, the preferable course of sealing the house rather than immediately conducting a warrantless search.
Petrone raises the additional objection that he did not freely and voluntarily give his consent to the search of his home. Under Second Circuit law, the court must "look to the "totality of the circumstances' in determining whether a consent to a search is voluntary or not." United States v. Faruolo, 506 F.2d 490, 493 (2d Cir. 1974). A defendant's consent is valid where an agent reasonably believes that a warrant would be obtained and so informs a defendant, so long as there is no deceit or trickery. Id. at 494. In the case at hand, the "totality of the circumstances" indicate that ...