UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
August 1, 1985
UNITED STATES OF AMERICA,
JUAN CARLOS OSPINA and DIEGO ZULUAGA, Defendants.
The opinion of the court was delivered by: COSTANTINO
MEMORANDUM OF DECISION AND ORDER
The United States Attorney moves this court to reconsider the Memorandum of Decision and Order made by this court on July 2, 1985. For the reasons that follow, the motion is denied.
It is the government's position that regardless of Giovino's purpose in entering PH-L, the entry was lawful. The Government's Memorandum to Reconsider at 3 states:
Agent Giovino did not need a warrant to enter the apartment, even if his avowed purpose was to execute an arrest warrant for Rodriguez-Orjuelo, because he had the consent of the residents.
It is undisputed that the consent, if any, was based upon Giovino's pretense as a maintenance worker, and that accordingly, it was not knowingly and intelligently made.
It is apparent to this court that the government is arguing in support of the proposition that government agents may enter a premises for any reason, provided that they do so under the (false) pretense that the agent is not acting as an agent. For this court to so hold would relegate the Fourth Amendment to memory and eliminate it in practice.
It is axiomatic that execution of arrest warrants are subject to the limitations contained in 18 U.S.C. § 3109. The Government does not even attempt to justify the execution of the arrest warrant as being in satisfaction of the statute. Moreover, it is clear without any doubt that there were neither "exigent circumstances" nor "hot pursuit" in order to satisfy the limited exceptions to 18 U.S.C. § 3109.
Additionally, the government argues that there is "no proof" that Giovino exceeded the scope of the so-called invitation. In fact, this court has determined that Giovino seized an envelope bearing the name of the Toyota dealer during one of the "consensual" entries.
Although Giovino testified that he limited his activities, this court simply does not believe the testimony inasmuch as it was rife with contradiction on this very point.
The government next argues that this court should consider the footlockers and steamer trunks as elements of probable cause. Initially, the court notes that nearly every person in the United States who lives at a particular place for a limited period of time, e.g., students, could be linked with Rodriguez on the basis of this observation. Moreover, this court has held the entry to be illegal ab initio. Accordingly, none of Giovino's observations were legally made.
At page 6 of its Memorandum in Support, the government argues "that only three weeks before Giovino made his observations . . . Wambser had positively identified Rodriguez . . ." The court notes that Wambser's observation of Rodriguez was at least thirty days, not three weeks, old. Additionally, the government's reliance on any of Fulton's statements regarding PH-L or the penthouse floor is entirely misplaced. This court does not believe anything that Fulton said regarding the penthouse floor inasmuch as Fulton's testimony is so inconsistent on this point that it is wholly unworthy of belief.
The government characterizes PH-L as a "recent residence" of Rodriguez. There is no support in the record whatsoever for this proposition. In fact, this court expressed great dismay at the absolute failure of the Task Force to ascertain if either PH-L was Rodriguez' residence or whether Rodriguez would be present in PH-L on the date Giovino sought entry therein.
What the government would have this court do is determine that Rodriguez' transient presence in PH-L on one occasion constitutes residence. This court will not accomplish for the government what its agents' sloppy work failed to uncover. Essentially, the government has consistently argued, without expressing it directly, that this court adopt the dissent in Steagald v. United States, 451 U.S. 204, 223, 68 L. Ed. 2d 38, 101 S. Ct. 1642 (1980).
If a suspect has been living in a particular dwelling for any significant period, say a few days, it can certainly be considered his "home" for Fourth Amendment purposes, even if the premises are owned by a third party and others are living there, and even if the suspect concurrently maintains a residence elsewhere as well. In such a case the police could enter the premises with only an arrest warrant. On the other side, the more fleeting a suspect's connection with the premises, such as when he is a mere visitor, the more likely that exigent circumstances will exist justifying immediate police action without departing to obtain a search warrant.
Steagald at 230-31, (Rehnquist, J. dissenting).
Rodriguez was in PH-L on one day, not several days. Moreover, the sighting of Rodriguez was at least thirty days old. Healy waited two weeks before he advised the Task Force of the sighting. The facts belie immediacy. There are no exigencies. The Fourth Amendment ipso facto prohibits "fishing expeditions" by agents posing as maintenance workers. There is no reason to reconsider the order granting the motion to suppress
Mark A. Costantino
U. S. D. J.
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