The opinion of the court was delivered by: PIERCE
In July 1980, Shawn Dianne Becker and Robert Wyler were arrested on charges stemming from a November 1979 indictment for conspiracy to extort and extortion in violation of 18 U.S.C. § 894.
On September 9, 1980, approximately one month before the scheduled commencement of their trial, the defendants moved to suppress "all materials, records, documents and the fruits thereof" seized during the May 29 and May 31, 1978 searches of a house they were renting at 3800 N.W. 89th Avenue Hollywood, Florida (hereinafter alternatively "3800" or "the Florida house"). The circumstances surrounding the search of 3800 were elicited at a two day suppression hearing held on September 17 and September 22, 1980.
Since the government agents did not obtain a search warrant and neither of the defendants authorized or consented to the entry, they contend that the search infringed upon their reasonable expectations of privacy in violation of the Fourth Amendment.
The government admits that there was no search warrant but contends that its agents entered 3800 at the invitation of the mortgage holder of the property after the premises had been abandoned.
For the reasons detailed below, the motion to suppress the physical evidence is granted.
The following constitutes the Court's findings of fact in this case. These findings are made after observing the demeanor and assessing the credibility of the witnesses who testified and examining the various documents submitted by the parties.
In early 1977 defendants Shawn Dianne Becker and Robert Wyler moved their furniture and other possessions from their residence in Port Washington, New York, to the Florida house. Joe LaLota, a Nassau County police officer and operator of a small moving company, handled the move. Wyler and Becker arranged to rent the premises at 3800 through one Robert Codling, a real estate agent at the Alamo Realty Company in Florida. The monthly rental was $ 1,100 and included an option to buy by assuming a $ 40,000 balloon mortgage. The house was rented in Becker's name but she testified that she could not recall whether she had signed a written rental agreement. Internal Revenue Service Agent Kevin Craddock, a government witness who conducted a tax investigation of Shawn Becker and her business interests, testified that he had seen a lease on the subject premises and had a copy of the document in his files. Neither side introduced the lease into evidence.
Although Becker actually rented the house, the undisputed testimony of both Wyler and Becker establishes that they resided in it together and appear to have shared expenses, including rent paid for the premises.
For the most part the defendants claim the rent was paid in cash although Becker occasionally paid the rental of $ 1,100 by check. (A Dania Bank checking account statement for Shawn's Camelot, a nightclub owned by Becker, reflects an $ 1,100 debit on April 25, 1978 (Govt. Exh. 2). This the Court infers was a rental payment.) They also moved their furniture from Long Island to the Florida house (corroborated by LaLota); they arranged for maintenance, and obtained telephone and electric service (Govt. Exhs. 15 & 16); Becker maintained a checking account (Govt. Exh. 3) and a safe deposit box (Govt. Exh. 1) at local banks. These activities support the defendants' position that they were residents of the Florida house. However, during this time Wyler and Becker also continued to receive mail at a variety of post office boxes and addresses.
In or about early April of 1978 Wyler was arrested and on April 11, 1978 he appeared in New York before Judge Carter of this Court for a criminal pre-trial conference on Indictment 78 Cr. 150. Wyler did not appear on April 24, 1978 when the trial of the matter before Judge Carter was scheduled to commence. He was thereafter considered a fugitive and a warrant was issued for his arrest. Although it is impossible to determine the precise date in April when Wyler left the Florida house, it is clear that he was a fugitive during the critical period from mid-April until early June. He returned to the Florida house in June, after the search in issue, peered through the windows, saw the house in disarray and did not re-enter.
Becker testified that she continued to reside in the house during April and May 1978, and that she communicated with Wyler about the house by telephone. At least two hundred long distance calls were made from Becker's telephones during the month of April 1978. (Govt. Exhs. 15 & 16). The majority of these calls were made to Miami, Florida, where Wyler testified he spent time while a fugitive. The Court concludes that Wyler and Becker continued to communicate during this period. Becker also met with Wyler once in New York after his arrest. In the Court's view, Wyler intended to continue to maintain his expectation of privacy in the Florida house even while he was away.
Becker testified that in April 1978 she decided to leave Florida temporarily to go to Fort Wayne, Indiana, for an operation on her foot. During this period she resolved to ship certain of the furniture from the Florida house to her mother in California and, pursuant to Wyler's request, to ship his business and legal papers to him in New York. However, both defendants planned to leave some of their possessions in the Florida house because they intended, however tentatively, to continue their residence there.
Becker made shipping arrangements by contacting Joe LaLota who had initially packed and moved their property from Port Washington, New York. LaLota, a government witness, received a telephone call in late April 1978 in which Becker told him that she wanted "to move her belongings from Hollywood, Florida to Hollywood, California." On May 4, 1978 they met at a Bagel Nosh restaurant in New York City to discuss the arrangements. At that meeting, Becker told LaLota that she wanted the furniture and other household items moved from the Florida house to California where the goods would be "consigned to storage because she was going to travel with her boyfriend and see the country." LaLota gave Becker an estimate of $ 1,500 for moving based upon the items she identified were to be moved. There was no testimony as to any discussion between Becker and LaLota regarding which items, if any, were to remain.
Although Becker indicated that she wanted, LaLota to personally handle the packing, there was no mention of any deadline and no specific date for the packing and shipment was set. Becker signed the shipping order (Govt. Exhs. 9 & 9(A)) authorizing the shipment. Becker also asked LaLota to arrange to transport a Cadillac, one of the two cars Wyler and Becker owned, to her parents in California for the purpose of selling it. She left the Cadillac with LaLota when they met in New York; LaLota testified that he parked the car which had "a red velvet interior full of dog hair" in a New York garage and eventually had the car driven to California. The defendants also owned a B.M.W. which Becker testified she gave to her father in California when she left Florida. However, the record is silent regarding how or when that vehicle was transported.
LaLota testified that on or about May 22, 1978 he received another phone call from Shawn Becker. She told him that the packing had to take place on May 24th, a date which she insisted upon despite LaLota's protests that it conflicted with his police work schedule. According to Becker, she had insisted on the May 24th packing date because that was the only day her mother could be in Florida to supervise the packing. LaLota and Becker agreed upon this date and, on May 24th when LaLota arrived at the house, he was greeted by a woman who introduced herself as Shawn Becker's mother, Sylvia Becker. He had not previously been told that Becker would not be there herself. Becker testified that by this date she had ...