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UNITED STATES v. MUTULU SHAKUR

March 29, 1983

UNITED STATES OF AMERICA
v.
MUTULU SHAKUR, a/k/a "Doc," a/k/a "Jeral Wayne Williams," SEKOU ODINGA, a/k/a "Nathaniel Burns," a/k/a "Mgabasi," a/k/a "Mugubasi," a/k/a "Eddie Holmes," a/k/a "Lou," CECIL FERGUSON, a/k/a "Mo," a/k/a "Chui," EDWARD LAWRENCE JOSEPH, a/k/a "Edward Lawrence," a/k/a "Jamal," a/k/a "Tony," a/k/a "J.R.," WILLIAM JOHNSON, a/k/a "Bilal Sunni-Ali," a/k/a "Spirit," SILVIA BARALDINI, a/k/a "Louise," SUSAN ROSENBERG, a/k/a "Elizabeth," CHERI DALTON, a/k/a "Nahanda," ILIANA ROBINSON, a/k/a "Naomi," NILSE COBEO, a/k/a "Nilse Lawrence," a/k/a "Ginger," a/k/a "Gigi," a/k/a "Giovanni Correa," and ALAN BERKMAN, Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

 KEVIN THOMAS DUFFY, D.J.:

 On the morning of November 9, 1982, Sylvia Baraldini was arrested on the street near her apartment pursuant to a federal complaint and warrant. At the time of her arrest, she was carrying and law enforcement personnel seized a blue cloth shoulder bag and a marroon shoulder bag both of which contained miscellaneous papers. Defendant Baraldini now moves to suppress these documents and their fruits for violations of the First and Fourth Amendments as well as the attorney-client privilege.

 Based on the papers seized from the defendant, the government submitted an application for a search warrant. Members of the New York City Police Department Bank Robbery Task Force ("Task Force") were assigned at approximately 12:15 p.m. to guard the entrance of Ms. Baraldini's apartment at 200 West 95th Street until a warrant was issued. Judith Holmes, Esq., one of the defendant's attorneys, arrived at the apartment around 2:00 p.m. and was not permitted to enter. *fn1" Ms. Holmes spoke through the door to Margot Pelletier, a friend of Ms. Baraldini's who was inside the apartment, and told her of the presence of the police officers who were waiting for a warrant before entering. Approximately one hour later, the officers entered the apartment without a warrant. The police officers conducted an "extensive visual search" (Affidavit of Margot Pelletier at 2) of the apartment until close to 5:30 p.m. when the search warrant was signed by Magistrate Raby. From the time the search warrant was issued until 10:00 p.m. that evening, Federal Bureau of Investigation ("FBI") agents as well as Task Force officers searched Ms. Baraldini's apartment. The officers finally left the apartment carrying seven cartons. Ms. Holmes was then given a copy of the search warrant and a ten-page inventory.

 Baraldini now moves to suppress all evidence seized from her apartment and the fruits thereof for the following reasons: (1) the warrantless entry was illegal; (2) there was no probable cause for issuance of the search warrant; (3) the warrant was unconstitutionally overbroad, and (4) the items seized were outside the scope of the search warrant.

 I. Search Incident to Arrest

 Ms. Baraldini admits that at the time of her arrest she was carrying the miscellaneous papers seized by law enforcement. Affidavit of Susan V. Tipograph at para. 3. In the same breath she contends that the search of these files was not properly executed incident to her arrest. It is established beyond peradventure that the arresting officer has a right to search "the arrestee's person and the area 'within [her] immediate control' -- construing that phrase to mean the area from within which [she] might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969). This right has since been further refined to allow an officer to conduct a search incident to arrest regardless "whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence." United States v. Chadwick, 433 U.S. 1, 14, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977).

 Property within the immediate possession of the person arrested is properly subject to search. United States v. Edwards, 415 U.S. 800, 803, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974). The bags seized from Baraldini were within her immediate possession and thus were constitutionally searched by the police officers. Cf. United States v. Edmonds, 535 F.2d 714, 720 (2d Cir. 1976), (search of suitcase); United States v. Lam Muk Chiu, 522 F.2d 330, 332 (2d Cir. 1975) (search of attache case); United States v. Venizelos, 495 F. Supp. 1277, 1281 (S.D.N.Y. 1980) (search of handbag).

 Baraldini alternatively argues that a search incident to arrest must take place contemporaneously with the arrest. This argument is effectively undermined by the Supreme Court's holding in United States v. Edwards, 415 U.S. at 803: "It is also plain that searches and seizures that could be made on the spot at the time of the arrest may legally be conducted later when the accused arrives at the place of detention." See also United States v. Venizelos, 495 F. Supp. at 1281. The officers processing Baraldini called Assistant United States Attorney ("AUSA") Robert S. Litt, one of the attorneys responsible for the prosecution of this case, and requested permission to search the defendant's bag. Affidavit of Robert S. Litt at para. 2. Litt authorized the search after learning that Baraldini was carrying the bag when arrested. Id. This authorization was consistent with Supreme Court precedent and Baraldini's constitutional rights.

 Baraldini finally argues that the First Amendment renders the warrantless search illegal. The defendant was serving as a legal assistant to Susan V. Tipograph, Esq. at the time of her arrest. It is alleged that documents seized are protected by the attorney-client privilege. A bald assertion of this privilege does not operate to invalidate a legal search. Baraldini's reliance on National City Trading Corp. v. United States, 635 F.2d 1020 (2d Cir. 1980) is unpersuasive. In National City, the Second Circuit upheld a search of a law office to obtain evidence of a client's criminal activity. Although cautioning against unnecessary intrusion on attorney-client communications, the court nevertheless allowed the search "if there is reasonable cause to believe that the specific items sought are located on the property to be searched." Id. at 1026.

 Further validation for the instant search is found in Baraldini's failure ever to identify, although all the seized documents are available for inspecting the papers supposedly protected by the privilege. I cannot expect law enforcement to be able to scrutinize all papers seized for a potential attorney-client privilege when the person asserting the privilege fails to do so.

 For all the above reasons, I uphold as constitutional the warrantless search of Ms. Baraldini's bags conducted incident to her arrest.

 II. Warrantless Entry

 Members of the Task Force entered Baraldini's apartment approximately one and one-half hours before the search warrant was issued. The defendant contends that the "exigent circumstances" exception approved in Warden v. Hayden, 387 U.S. 294, 298, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967), is inapplicable and therefore requests suppression of all property seized from the premises.

 The Fourth Amendment prohibits a search of a private home without a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Limited exceptions to this general prohibition, however, have been fashioned when exigent circumstances make waiting for the issuance of a warrant impossible. United States v. Martino, 664 F.2d 860, 869 (2d Cir. 1981), cert. denied, 458 U.S. 1110, 102 S. Ct. 3493, 73 L. Ed. 2d 1373 (1982). For example, the Second Circuit has held

 
that where a lawful arrest was made on the street outside the defendant's apartment, and the officers had a legitimate basis for believing there were other persons inside the apartment who were likely to be aware of the arrest and therefore might destroy evidence in the apartment, a warrantless entry into and security check of the apartment was permissible.

 Id.; see United States v. Agapito, 620 F.2d 324, 336 n.18 (2d Cir.), cert. denied, 449 U.S. 834, 66 L. Ed. 2d ...


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