Appeal from a judgment of the United States District Court for the Southern District of New York, Wyatt, J., denying appellant's motion to suppress evidence seized pursuant to a warrantless search, revoking appellant's probation and sentencing him to a total of twenty-five years' imprisonment. Denial of suppression motion and revocation of probation is affirmed; motion to vacate sentence is granted; remanded for resentencing.
Oakes, Meskill and Pierce, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Southern District of New York, Inzer B. Wyatt, J., denying appellant's motion to suppress evidence seized pursuant to a warrantless search, and revoking appellant's probation and sentencing him to a total of twenty-five years' imprisonment. For the reasons stated below, we affirm the denial of appellant's motion to suppress and the district court's revocation of appellant's probation. However, because we believe that in imposing sentence the district court may have based its sentence upon improper considerations, we vacate the sentence imposed and remand for resentencing.
On June 22, 1983, appellant Edward Trzaska was convicted on seven counts of illegal receipt of firearms, in violation of 18 U.S.C. § 922(h)(1). On September 7, 1983, the district judge sentenced Trzaska to concurrent three-year terms of imprisonment on Counts One and Two. The court suspended imposition of sentence on Counts Three through Seven and imposed concurrent five-year terms of probation on each count. The judgment of conviction sub- sequently was affirmed by this Court in a memorandum order dated February 17, 1984. See United States v. Trzaska, No. 83-1333 (2d Cir., Feb. 17, 1984).
The district judge thereafter reduced the term of imprisonment to two years, pursuant to a Rule 35 motion, but did not alter the terms of probation. At the original sentencing and again when the sentence was reduced, the court specifically made it a special condition of probation that appellant not "possess or obtain, in any way, fire-arms" during the probationary period.
On October 12, 1987, acting on a tip from appellant's estranged wife, Nassau county police officers conducted a warrantless search of appellant's apartment and seized nineteen weapons. Just prior to the search, the police had obtained the consent of appellant's wife to search the apartment. Although Mrs. Trzaska and her children had moved out of the apartment two weeks earlier, she still possessed an entrance key. She agreed to accompany the police to the apartment and she allowed them to enter. While Mrs. Trzaska collected a few of her children's belongings, the police conducted a search of the apartment. Based on the fruits of this search, a violation of probation charge was filed.
On November 24, 1987, the district court held a hearing on the violation of probation charge. At that hearing, counsel for appellant moved to suppress the weapons seized at appellant's home on October 12th. At the conclusion of the hearing, the court revoked Trzaska's probation, finding that Trzaska had possessed weapons in violation of the special condition of probation which had been imposed concerning firearms. With respect to the suppression motion, the court found that there had been a "valid consent to [the] search," and thus denied the motion.
At appellant's sentencing hearing on December 10, 1987, the district judge noted that appellant had "blighted" the lives of several women, and that he had fathered numerous children over the years. The judge commented: "I raise these matters because it seems to me, with all the leniency that has been shown to Mr. Trzaska over these last several years, he has to be removed from society to eliminate the danger that he poses to women and the danger to society he poses in fathering numerous children." The judge then vacated the suspension of the imposition of appellant's sentence on Counts Three through Seven, and ordered that appellant serve five consecutive terms of five years' imprisonment on each count.
On appeal, Trzaska contends that the district court erred in denying his motion to suppress the nineteen fire-arms found in the apartment on October 12, 1987, and also that the court relied on a constitutionally impermissible factor in sentencing him. Appellant also contends that the court violated Fed. R. Crim. P. 32(a)(1) by failing to determine whether he and his defense counsel had an opportunity to read and discuss the presentence investigation report prior to sentencing. For the reasons stated below, we affirm the denial of appellant's suppression motion and the revocation of Trzaska's probation. How- ever, because we believe that appellant has raised valid objections with respect to his sentencing by the district court, we vacate the sentence imposed and remand for resentencing.
A. The Suppression Motion
On appeal, Trzaska urges two reasons why the firearms seized from his apartment should have been suppressed. First, appellant contends that the third party consent to search given by his estranged wife was not voluntary on her part, and that it was the product of a coercive interrogation by Nassau County Police. In the alternative, appellant argues that his wife did not have the authority to consent to the search of his apartment because she was no longer living with him, and had ceased to have "mutual use" or ...