Appeals from judgments of conviction entered after a jury trial in the Southern District of New York, Irving Ben Cooper, District Judge, for violations of federal narcotics and firearms laws. Affirmed.
Before Timbers, Van Graafeiland and Newman, Circuit Judges.
After an eleven day jury trial in the Southern District of New York, Irving Ben Cooper, District Judge, appellants Calixto Agapito, Martha Calderon and Horacio Rueda were convicted of conspiring to possess and distribute cocaine, in violation of 21 U.S.C. § 846 (1976) (Count One), and possessing with intent to distribute approximately one kilogram of cocaine, in violation of 21 U.S.C. § 841 (1976) (Count Four). Rueda also was convicted of possessing with intent to distribute approximately six kilograms of cocaine, in violation of 21 U.S.C. § 841 (1976) (Count Two), and carrying a firearm during the commission of a federal felony, in violation of 18 U.S.C. § 924(c)(2) (1976) (Count Three).*fn1
We find that the chief questions on appeal relate to the seizure of certain evidence allegedly in violation of the Fourth Amendment. Specifically, appellants raise the following questions:
(1) Whether federal agents in a hotel room adjoining the hotel room of Agapito and Calderon violated the Fourth Amendment when the agents pressed their ears against a door connecting the two rooms in an attempt to overhear appellants' conversations.
(2) Whether the arrests of appellants were based on probable cause.
(3) Whether the agents' warrantless entry into the hotel room of Agapito and Calderon after their arrests, although illegal, compels reversal of their convictions.
We hold that the agents' eavesdropping did not violate the Fourth Amendment and that appellants' arrests were based on probable cause. Although we conclude that the agents' entry into the hotel room was improper, for the reasons stated below we nevertheless affirm the convictions of all appellants on all counts.
On the afternoon of February 21, 1979 an informant called Special Agent Victor Aponte of the Drug Enforcement Administration (DEA) with information regarding narcotics activity at the Sheraton Center Hotel in Manhattan. The informant told Aponte that he had received the information from a close friend referred to as "Mr. X".*fn2 The informant was considered reliable. Previous information from him had led to at least two search warrants and several arrests and convictions. In addition, information provided by Mr. X to the informant had proven reliable in the past. It had resulted in the issuance of a search warrant, arrests and the seizure of narcotics.
The information provided by Mr. X, as relayed by the informant to Aponte, was that a male and a Cuban female from Miami named Martha had been in Room 1701 of the Sheraton Center for several days and that they had approximately four kilograms of cocaine that they wished to sell before the weekend. Mr. X had seen and sampled the cocaine. According to Mr. X, other individuals had sampled the cocaine and were planning to purchase it.
Agents Richard Bell and Jaime Forteza were assigned to the case and arrived at the Sheraton Center at approximately 6:00 p.m. that evening. They confirmed with hotel security personnel that a Martha Calderon, with a Miami address, was staying in Room 1701. The hotel records disclosed that she had paid in cash on a daily basis the double room rate of $76 per day, as well as room service and telephone calls.
The agents obtained permission to use Room 1702, which adjoins Room 1701, for surveillance. The door to Room 1701 was open when the agents walked by. They observed Calderon and Agapito inside. Once inside Room 1702 the agents could hear sounds and parts of conversation coming from Room 1701. The two rooms had a common wall with a connecting door. There was a crack between the door and the door frame. By pressing their ears to the crack, the agents could hear additional noises and conversations. Forteza, who had grown up in Cuba, recognized that Calderon spoke with a Cuban accent.
The next day, February 22, Forteza heard the dialing of the phone in Room 1701. He then heard Agapito say to Calderon, "He's bringing it over now." At approximately 2:00 p. m. that afternoon an agent who had taken up an observation post in Room 1708 observed Horacio Rueda enter Room 1701. Rueda was carrying an attache case and a shoulder bag. He was accompanied by a small boy.
While Rueda was in Room 1701 the agents heard the sounds of tape being torn and paper being shuffled and counted. Aponte, who by this time had joined his colleagues in Room 1702, heard a male voice in Room 1701 say the figures "one-five-zero-zero-zero" during the shuffling sounds.
After fifteen minutes Rueda and the boy left the room but without the attache case and the shoulder bag. Rueda was arrested by DEA agents in the hotel lobby. A search revealed that he was carrying a loaded .22 caliber derringer. He was taken to DEA headquarters. After being advised of his rights he admitted that the attache case he delivered to Room 1701 had contained cocaine. There was conflicting testimony as to whether Rueda subsequently retracted that statement. In any event the statement was conveyed by telephone to the agents in Room 1702.
Around 4:00 p. m. that afternoon Agapito and Calderon left Room 1701. Agapito was carrying the attache case delivered by Rueda. DEA agents arrested the two in the hotel lobby, opened the attache case and found $29,000 inside.
After the arrests the agents went upstairs to Room 1701. They were admitted to the room by hotel security personnel. Once inside the agents seized, but did not open, a blue suitcase. They did not otherwise search the room.
At 6:15 p. m. that evening the telephone in Room 1701 rang. Posing as an associate of Agapito and Calderon, Forteza answered the phone. A female, later identified as Ligia Atehortua, inquired as to the whereabouts of Rueda and the boy who was her son. She called back twice and spoke each time to Forteza who was still posing as an associate of Agapito and Calderon. Eventually she gave Forteza permission to come to her apartment at 328 East 25th Street.
Together with three other agents, Forteza went to Atehortua's apartment. He identified himself as a DEA agent and obtained the verbal and written consent of Atehortua to search her apartment. The search resulted in the seizure of six kilograms of cocaine, $2,810 in cash, various items of narcotics paraphernalia and several pictures of Rueda. The agents and Atehortua then returned to Room 1701 where she spent the night.*fn3
At 4:00 p. m. the following day, February 23, after the agents had been in possession of Room 1701 for almost twenty-four hours, a search warrant was obtained to search the room. The agents opened the blue suitcase which had been seized upon the agents' original entry into the room the day before. They found approximately one kilogram of cocaine in the suitcase.
An indictment was returned in the Southern District of New York on March 1, 1979 charging appellants with the offenses stated above. Before trial, appellants moved to suppress all post-arrest statements and all evidence seized from them, from Room 1701 and from Atehortua's apartment. Following a four day evidentiary hearing, the district court denied the suppression motions. The trial began May 9, 1979 and concluded May 23 when the jury returned verdicts finding all appellants guilty on all counts as charged. On June 27, 1979 sentences were imposed as stated above. From the judgments of conviction entered on June 27, these appeals have been taken.
In the light of these facts and prior proceedings, we turn first to the question whether the DEA agents violated the Fourth Amendment when they eavesdropped on appellants' conversations by pressing their ears to the door connecting Rooms 1701 and 1702.*fn4 We hold that they did not.
The starting point for our analysis is Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). There government agents eavesdropped on conversations in a telephone booth by means of an electronic listening device attached to the top of the booth. Holding that "the Fourth Amendment protects people, not places", id. at 351, the Court discarded the trespass analysis applied in prior cases to determine whether a Fourth Amendment search and seizure occurred. Id. at 351-53. The Court concluded that, despite the absence of a physical intrusion into the telephone booth, the agents' actions "violated the privacy upon which (the defendant) justifiably relied while using the telephone booth and thus constituted a "search and seizure' within the meaning of the Fourth Amendment." Id. at 353 (emphasis added).
As stated more explicitly in Justice Harlan's oft-cited concurring opinion, the Court established a two-part test for determining whether a Fourth Amendment search and seizure occurred: "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable.' " Id. at 361 (Harlan, J., concurring) (emphasis added).
Subsequent cases have illustrated the two-part Katz test. In United States v. White, 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971), for example, the Court upheld the use of the defendant's statements that federal agents had overheard by means of a transmitter worn by an informant during meetings with the defendant.*fn5 Undoubtedly the defendant in White expected that his conversations with the informant would be private. This expectation was held not to be protected, however, because he took the risk that a person "to whom he voluntarily confides" would reveal his secrets to the police. Id. at 749 ...