Appeals from judgments entered in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, convicting all five appellants of narcotics offenses and appellants Dominguez and Delgado of firearms offenses. Convictions of appellants Maldonado, Delgado and Dominguez affirmed; convictions of appellants Sanchez and Alvarez vacated and remanded for further proceedings.
Before Newman and Kearse, Circuit Judges, and Sifton, District Judge.*fn*
These are appeals from judgments of conviction entered in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge. Appellants Luis Sanchez, Juana Dominguez and Luz Alvarez were convicted of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1976). Sanchez and Dominguez, along with appellants Luis Torres Maldonado, and Carlos Delgado, were convicted of conspiring to distribute cocaine and to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. In addition, Dominguez and Delgado were convicted of being illegal aliens in unlawful possession of firearms, in violation of 18 U.S.C. App. § 1202(a)(5) (1976).
On their appeals from the convictions, appellants contend principally that certain searches and seizures violated their rights under the Fourth Amendment and that evidence derived therefrom should have been suppressed. They complain also of the government's failure to preserve certain reports relating to the testimony of one Olga Perdomo, an important government witness. In addition, Maldonado contends that he was illegally detained by immigration agents and that statements and documents derived from the detention should have been suppressed.
For the reasons set forth below, we find no error in the district court's rulings with respect to Maldonado, Delgado and Dominguez, and we affirm their convictions. As to Sanchez and Alvarez, we conclude that the district court did not apply a correct standard in determining whether Sanchez voluntarily consented to the search of the apartment where he and Alvarez were staying. Consequently we vacate the convictions of Sanchez and Alvarez and remand for further proceedings.
The case arises out of events which came to a head on the evening of January 16, 1979. On that evening agents of various law enforcement agencies, including the United States Immigration & Naturalization Service ("INS"), the federal Drug Enforcement Administration ("DEA"), and narcotics and homicide task forces of the New York Police Department ("NYPD"), entered and searched three apartments in various sections of Queens, New York, which were the residences of certain of the appellants. At each apartment incriminating items were seized. The first apartment was that shared by Dominguez with one Lucy Garcia. After placing Dominguez and Garcia under arrest for illegal possession of weapons and narcotics,*fn1 the agents proceeded to the apartment of Delgado. There they questioned the persons present, who included Delgado, Maldonado, Alvarez and Sanchez, and seized various items from these persons and certain items found in the apartment. Delgado and Alvarez were arrested on charges of being illegal aliens; Maldonado was "detained" until his alien status could be determined, and was later charged with conspiracy to possess and distribute narcotics. Some of the officers then took Sanchez to a third apartment in Queens, where he and Alvarez resided. In Sanchez's presence, the officers conducted a thorough search of the apartment and seized various items including a large quantity of cocaine and some $234,000 in cash.
A. The Suppression Hearing
The five appellants and Garcia moved to suppress the items seized during the evening of January 16 and the statements made by them during the course of the evening. The district court conducted a hearing on the motions to suppress on March 12-14, 1979. Four witnesses testified for the government: INS criminal investigators Sebastian Ortega and Victor Rita, NYPD officer Jose Flores, who was assigned to the federal Drug Enforcement Task Force; and DEA agent Richard Crawford. Garcia and Sanchez testified in support of the suppression motions.*fn2
A background picture, leading up to the events of January 16, emerged as follows. In October, 1978, NYPD detective Thomas Healy, assigned to a homicide task force, was investigating a homicide believed to be narcotics-related. An address book found on the victim listed, inter alia, the address 39-11 65th Place, apartment 2F, which was the apartment occupied by Dominguez and Garcia. In early January 1979, in connection with a narcotics investigation, Crawford was conducting a surveillance of Sanchez, then known to law enforcement officials as "John Burgos," and had observed Sanchez leaving an apartment he was believed to occupy at 61-20 Grand Central Parkway, and followed Sanchez first to the apartment of Dominguez and Garcia, and later to the apartment occupied by Delgado. Except as otherwise indicated, the following account of the events of January 16 is drawn from the testimony of the government witnesses, which was accepted by the district court on all disputed points.
1. The Dominguez-Garcia Apartment
Flores testified that at about 8:00 p.m. on January 16, he and Healy went to 39-11 65th Place, to ask questions relating to the homicide. When they arrived at that address they commenced to interview other residents of the building about the occupants of apartment 2F. While they were so engaged, they were joined by DEA agent William Mockler, who informed them that a car had just pulled up to the building, carrying two women and a man, and that one woman had left the car and that he had seen lights go on in a second-floor apartment. While Mockler went back outside, Flores and Healy went up to the second-floor apartment, 2F, identified themselves as police officers to the woman who answered the door, and stated that they wished to ask her some questions about a homicide. The woman, later identified as Garcia, admitted them to the apartment. Garcia told them that she was from Puerto Rico and lived in the apartment with her roommate Juana Dominguez, also from Puerto Rico. Healy informed Garcia of her constitutional rights and Garcia said that she understood.
Meanwhile, Mockler and a Detective Robinson spoke with the man and woman who had remained in the car downstairs. The woman gave her name but denied living in the building. Mockler and Robinson brought them up to 2F, where Mockler told Flores that this woman's name was Juana Dominguez and Flores told him that Garcia had said that was her roommate's name. In Spanish, Flores asked Dominguez her name, where she lived, and where she was from.*fn3 Dominguez told him her name and stated that she lived in the apartment and was from Puerto Rico. Flores asked her a few questions about Puerto Rico, such as the location of the airport and what town Dominguez was from. When Dominguez was unable to answer these questions, Flores, a native of Puerto Rico, told her he did not believe that she was Puerto Rican, and read Dominguez her constitutional rights. In response to continued questions, Dominguez denied that there were any narcotics in the apartment, but admitted that there were two guns. She pointed them out to Flores, and Flores seized them.
In the meantime, Flores had told Mockler his suspicion that Dominguez was an illegal alien, and Mockler had relayed this suspicion to INS. Ortega and Rita, responding to Mockler's call, arrived at the apartment about half an hour after Flores' seizure of the guns. Ortega, also speaking Spanish, took over the questioning of Dominguez, who gave what Ortega considered vague answers to questions as to when she had left Puerto Rico, where she had gone to school in Puerto Rico, and where she had boarded a plane to come to New York. Dominguez showed Ortega a Puerto Rican birth certificate and a New York voter's registration card in her name. When Ortega asked if she had any other documents, Dominguez handed him a wallet. In the wallet Ortega found a driver's license, a picture of a child inscribed in Spanish "To Paulina," and two medical prescriptions, one for a Margarita Burgos and the other for a Paulina Pison. Dominguez explained that she was holding the prescriptions and photograph for two friends. On the basis of his interview with Dominguez and the accent of her Spanish, Ortega came to the conclusion that she was not from Puerto Rico, but from somewhere in South America.
Ortega told Dominguez that he did not believe that she was Puerto Rican and asked for her permission to search for documents which would show whether or not she was Puerto Rican, such as a passport or national identification card. According to Ortega's testimony, Dominguez, who appeared "very relaxed" and "(v)ery calm", said "Go ahead and look wherever you want." Ortega then asked Garcia for the same permission, and Garcia, who was also "very calm," replied, "Go ahead and look, but Juana is Puerto Rican." At this point Ortega considered that Garcia whom he had questioned and believed was Puerto Rican, was free to leave the apartment, but that Dominguez was not, since he wanted to investigate her status further. The officers searched the apartment and found several ounces of cocaine, some material used to dilute narcotics, a scale and more than $4000 in cash. They also found various letters from Colombia addressed to Paulina Pison. Mockler placed both Dominguez and Garcia under arrest, for unlawful possession of weapons and narcotics. Hugo Montoya, the male companion who had been brought to the apartment with Dominguez, was permitted to leave.
At the hearing Garcia gave a different version of the events. She testified that she had gone out to dinner with Dominguez and Montoya. When they returned, she had come up to the apartment alone, while Dominguez and Montoya remained in the car outside. Shortly thereafter she heard very loud knocking at the door. She opened the door, and Healy and Flores came in, grabbed her by the arm, and sat her down in the kitchen. They questioned her in both English and Spanish, without advising her of her constitutional rights. About six more agents arrived later, including those who brought Dominguez and Montoya into the apartment. At no time did she give any of the agents permission to come into the apartment. Garcia stated that when Ortega questioned her he said: "You are not Puerto Rican. Take her away." None of the agents told Garcia that they wanted to search for documents or asked her permission to search, and she never gave such permission. She never made a statement such as, "Go ahead and look, but she is Puerto Rican."
While these events were taking place at the Dominguez-Garcia apartment, DEA officials were attempting to locate Sanchez for questioning. Crawford had been informed by another agent that Sanchez's car was not at Sanchez's Grand Central Parkway address. Crawford therefore stationed himself in front of the address of Delgado's apartment, 86-16 60th Avenue, hoping Sanchez would arrive there. Between 9:15 and 9:30, he saw Sanchez arrive at the building in a gray Toyota, accompanied by a woman who was later identified as Sanchez's common law wife, defendant Alvarez. They went into apartment 5-Q. Crawford then went down and spoke to the building superintendent, who said that a couple from Colombia were living in that apartment. Crawford resumed surveillance and saw defendant Delgado enter the apartment around 9:45.
Sometime thereafter, Mockler, Healy, Flores, Rita and Ortega arrived at the 60th Avenue building. Healy and Mockler wanted to question Sanchez, and had asked Ortega and Rita to accompany them because they expected to encounter illegal aliens, including Maldonado whom they knew had previously been arrested by immigration officials. Crawford informed Mockler that Sanchez was in apartment 5-Q, and the immigration officers filled Crawford in on the events at the Dominguez-Garcia apartment. The six officers already mentioned were joined at some point by at least five others: Robinson, Special Agent Deignan, Detectives Guzman and Bizby, and an Investigator Logan. Eight of these officers, all dressed in civilian clothes, proceeded to apartment 5-Q. When the group of officers arrived at the apartment, Flores knocked on the door. Someone inside asked, "Who is it?" Flores answered in Spanish, "Police." A boy, later identified as Delgado's 13-year-old son, opened the door and Flores said in Spanish, "We would like to come in and talk to you." The boy stood back and opened the door wide, and six of the officers proceeded into the apartment. Flores showed his shield; none of the officers had a gun drawn. The officers saw two women in the apartment-one near the kitchen and one near the bedroom-and three men sitting on a couch in the living room. They did not ask any of the adults for permission to enter; none of the adults expressed an objection to their entry.
Rita asked the two women and the boy to go with him to a bedroom off the living room. They did so without objection. As Rita began to identify himself as an immigration officer, Robinson, who had accompanied them, called Rita's attention to the butt of a pistol on the shelf of a closet, the sliding door to which was open. Rita seized this gun along with a revolver and a derringer, which he saw on the shelf. Rita then repeated that he was an immigration officer and began to question the women about their status. One of the women identified herself as Luz Alvarez, and stated that she was a Colombian national visiting her husband in the United States. She was unable to give her husband's full name or his date of birth. The other woman was Delgado's wife, Luz Maria Mendez. She claimed to be a lawful permanent resident of the United States. Rita asked the two women for permission to search the area for documents to prove their status. Both women gave him permission, but Rita did not find any documents or correspondence. Alvarez was placed under arrest for being in the country illegally.
Meanwhile in the living room Flores read the three men-Delgado, Maldonado and Sanchez-their constitutional rights, in Spanish. They were asked if they understood, and answered affirmatively. Ortega then questioned each of the three as to his status. Maldonado said that he was from Colombia and had come across the Mexican border. He admitted that he had been arrested by immigration authorities a few weeks previously, which the DEA officials knew already, but was unable to give any explanation of his current status. He had no document showing his lawful presence or that he was scheduled for a hearing to determine his status. He did not know whether he had been released on bond, nor whether he was scheduled for a hearing. His answers to Ortega's questions were simply, "I don't know. My lawyer took care of everything." When asked his lawyer's name, Maldonado said he did not remember. Ortega told Maldonado that he would have to be taken to the immigration office to determine his status. The government apparently concedes that at this point Maldonado was under arrest.*fn4
Ortega next questioned Delgado. Delgado said that he was from Colombia and had come across the Mexican border without a visa and without any inspection by an immigration officer. He had no application pending with the immigration authorities to alter his status. Ortega placed Delgado under arrest for being in the country illegally.
Ortega then questioned Sanchez. Sanchez stated that he was from Puerto Rico and he produced a Puerto Rican birth certificate and a voter's registration card. He was unable, however, to answer questions about Puerto Rico, such as where he had boarded a plane to New York and where he had gone to school. Sanchez said he had no permanent place to stay in New York because he had only recently arrived from Puerto Rico, and said he had stayed at various places whose addresses he could not remember. In response to questions from Mockler, translated by Ortega, Sanchez denied owning a gray Toyota, denied having driven any car recently, and again denied having any permanent address. At this point Mockler told Ortega, in English, that Sanchez had been under surveillance for some weeks and on several occasions had been followed to and from what Mockler believed to be his residence at 61-20 Grand Central Parkway, apartment 1504. According to Ortega, Sanchez's facial expression visibly changed when he heard this; Ortega decided to take Sanchez to the Grand Central Parkway apartment to try to substantiate his belief that Sanchez was not Puerto Rican and find some document which would show Sanchez's true nationality.
At some point Maldonado, Delgado and Sanchez were searched and handcuffed. Their personal effects, including their keys, were taken. No general search of the apartment was conducted, but Crawford seized some papers lying openly on a bureau and a table, including correspondence from Colombia, parking tickets, and what appeared to be a customer list for narcotics transactions, showing names and amounts of money.
Sanchez testified at the hearing and submitted an affidavit, giving a much different account of the events at Delgado's apartment. According to Sanchez, he and his wife Alvarez were at Delgado's apartment for dinner. Sanchez, Delgado and Maldonado were on a sofa in the living room watching television, with their backs to the apartment door. The doorbell rang-Sanchez heard only the doorbell, rather than knocking-and Delgado told his son to open the door. Sanchez then heard someone say "Police;" when he turned he saw an officer with a badge in one hand and a gun in the other, and more officers advancing with their guns drawn.*fn5 The officers put the three men against the wall, handcuffed them, and started to search the apartment. They took everything out of Sanchez's pockets and began to question him. Sanchez denied telling any of the officers that he was from Puerto Rico and denied that any of the officers had advised him of his rights.
Delgado, Maldonado and Alvarez apparently were taken to the INS office in Manhattan. In accordance with Ortega's decision, however, Sanchez was taken to the Grand Central Parkway apartment, a five or ten minute drive away. Ortega had told him where he was going and had Sanchez's keys. Sanchez, his hands cuffed behind his back, was placed in a car with Ortega, Robinson and Healy. Mockler, Flores and Bizby followed in another car, and the two cars proceeded to Sanchez's apartment. In the car, Ortega again advised Sanchez of his constitutional rights. A security guard at the building entrance when they arrived admitted them when Ortega identified himself and the others as police officers. Five officers took Sanchez into the elevator and pushed the button for Sanchez's floor. At this point, Sanchez still denied living at that address. When they arrived at the door to apartment 1504, however, Sanchez volunteered, "Okay, that is my apartment. I live here." Ortega then told Sanchez that he did not believe Sanchez was Puerto Rican and, holding Sanchez's keys, asked him for permission to enter the apartment to look for documents which would indicate his nationality. Sanchez replied arrogantly, "Go ahead and look. You won't find anything." Ortega then handed the keys to Mockler. Mockler rang the bell and, when no one answered, unlocked the apartment door. The officers took Sanchez into the apartment and searched for nearly an hour. They found various documents belonging to Alvarez, including a Colombian passport which showed that that she had entered the United States from the Bahamas without an immigration inspection. They also found a large quantity of cocaine, some material used in "cutting" narcotics, a bullet-proof vest, a scale, and some $234,000 in cash. When confronted with the narcotics, Sanchez denied knowing anything about it. He said that the apartment was not really his, but belonged to a Pedro Oviedo, who paid Sanchez and Alvarez $500 a week to watch the apartment. Mockler placed Sanchez under arrest for possession of the cocaine.
Again, Sanchez's version of these events was much different. He denied that Ortega had advised him of his rights in the car, denied having any conversation with the officers in the hallway outside the apartment, and denied saying that they could "go ahead" and enter the apartment. On cross-examination Sanchez testified that he had first met Pedro Oviedo in a bar seven or eight months before, and that at their first meeting Oviedo offered to pay Sanchez, who had no job at the time, $500 per week to watch the apartment. Within the next two days Oviedo gave Sanchez the keys to the apartment, and Sanchez and Alvarez began to live there, with Oviedo returning to the apartment every twenty days or so from his travels.
B. The District Court Decision
The district court denied the motions to suppress in all respects holding that entry into all three apartments and the searches of the Dominguez-Garcia and Sanchez apartments were voluntarily consented to. With respect to the standard by which voluntariness is determined, the court stated as follows:
A consent is not necessarily valid though it is "voluntary" in the sense that the defendant has made a conscious and knowing choice. The defendant may have succumbed to quite rational fears of brutality or other extralegal tactics or may have been imposed upon by fraud or other unfair means. As the Fourth Amendment states, the police must be "reasonable", and they may not act in an uncivilized manner. It is the arbitrary and unreasonable activities of the police against which the Amendment seeks to forfend.
But a valid consent may be made to a policeman's request to enter or search. And a consent is not improperly obtained because it is given out of a concern to mitigate the full consequences of proper legal proceedings or in the hope of escape from the law entirely. United States v. Garcia, 450 F. Supp. 1020, 1025 (E.D.N.Y.1978). A consent is invalid under the Fourth Amendment only if the officers have transgressed civilized standards. No ...