Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Delva

United States Court of Appeals, Second Circuit

June 1, 2017

UNITED STATES OF AMERICA, Appellee,
v.
DAVID DELVA, a/k/a Sealed Defendant, Defendant-Appellant.

          Argued: May 20, 2016

         Appeal from a judgment of the United States District Court for the Southern District of New York, Katherine B. Forrest, Judge, convicting defendant of conspiracies to commit kidnapping and robbery, see 18 U.S.C. §§ 1201 and 1951; conspiracy to distribute narcotics, see 21 U.S.C. § 846; and substantive firearms offenses, see 18 U.S.C. §§ 924(c) and 922(g). Defendant principally challenges the district court's ruling that law enforcement agents' seizure of his cellular telephone and of letters belonging to his uncle from the bedroom shared by defendant and his uncle, following the arrest of the uncle in the apartment in connection with the kidnapping and robbery, pursuant to an arrest warrant but without a search warrant, did not violate the Fourth Amendment because those items were in plain view and were seized during a protective sweep of the apartment. Although the record shows that those items were in fact seized after the protective sweep had been completed and the agents had left and reentered the bedroom, the district court's findings that the items were in plain view in that room and were recognizable as evidence are not clearly erroneous; and we conclude that the agents' warrantless reentry into that room did not violate the Fourth Amendment because it was justified by the exigencies of the circumstances, given that the agents had found four adult males in the small apartment and had seen narcotics and a gun during the protective sweep, and that that bedroom was the only unoccupied room, other than the bathroom, in which to question, individually, the arrestee and the others in order to determine whom to arrest for possession of the narcotics and gun.

          JUSTINA GERACI, Assistant United States Attorney, New York, New York (Preet Bharara, United States Attorney for the Southern District of New York, Margaret Garnett, Assistant United States Attorney, New York, New York, on the brief), for Appellee.

          STEVEN Y. YUROWITZ, New York, New York, for Defendant-Appellant.

          Before: KEARSE, WINTER, and JACOBS, Circuit Judges.

          KEARSE, Circuit Judge:

         Defendant David Delva appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before Katherine B. Forrest, Judge, convicting him of conspiracy to commit robbery, in violation of 18 U.S.C. § 1951; conspiracy to commit kidnapping, in violation of id. § 1201; conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846; possession of a firearm in furtherance of the drug trafficking offense, in violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, in violation of id. § 922(g), and sentencing him principally to 360 months' imprisonment. On appeal, Delva contends principally that the district court erred in denying his motions for suppression of his cellphone and of letters addressed to his uncle, Gregory Accilien, seized by law enforcement agents without a search warrant, from the bedroom he shared with Accilien. The district court ruled that the seizure of those items did not violate the Fourth Amendment because they were in plain view and were seized during a protective sweep of the apartment following Accilien's arrest in the apartment pursuant to an arrest warrant in connection with the kidnapping and robbery. Although we agree with Delva that the record shows that the cellphone and letters were in fact seized after the protective sweep had been completed and the agents had left and reentered the bedroom, we conclude that the agents' warrantless reentry into that room did not violate the Fourth Amendment because it was justified by the exigencies of the circumstances, given that the agents had found four adult males in the small apartment and had seen narcotics and a gun during the protective sweep, and that that bedroom was the only unoccupied room, other than the bathroom, in which to question Accilien and the others individually in order to determine whom to arrest for possession of the narcotics and gun. As the district court's findings that the cellphone and letters were in plain view in that room and were recognizable as evidence are not clearly erroneous, we reject Delva's challenge to the denial of his suppression motions. Rejecting as well his additional evidentiary, procedural, and sentencing challenges, see Part II.B. below, we affirm the judgment.

         I. BACKGROUND

         The present prosecution of Delva had its origin in the kidnapping and robbery of a woman and a man in the Bronx, New York, which began on Labor Day weekend in 2012. Those crimes were investigated by a joint task force of Federal Bureau of Investigation ("FBI") agents and New York City Police Department ("NYPD") detectives and officers (collectively or in combination, the "Officers"). The evidence against Delva at trial (his codefendants had pleaded guilty) included drugs, a gun, and a cellphone, all belonging to him, and letters sent to Accilien by Accilien's brother (the "Accilien Letters"). Prior to trial, Delva initially moved to suppress only the drugs and gun, and a hearing was held; Delva thereafter sought to suppress the cellphone and, eventually, the letters.

         The following description of the relevant events is taken from findings by the district court after the suppression-motion hearing, from credited evidence at that hearing which included testimony by the two law enforcement agents leading the investigation, and from evidence at Delva's ensuing trial which included testimony by those agents, Accilien, and the two victims of the kidnapping/robbery, as well as DNA evidence.

         A. The Kidnapping and Robbery

         Late on Sunday evening September 2, 2012, the female victim (or "FV"), who was the girlfriend of a drug dealer--the male victim (or "MV")--was accosted by codefendants Trevor Cole and Dominique Jean Philippe, brandishing guns, outside of her apartment in a building on Magenta Street. She was forced to enter the apartment with Cole and Jean Philippe, who proceeded to search unsuccessfully for drugs and money. FV was blindfolded and assaulted as Cole, Jean Philippe, and others who joined them attempted to force her to telephone MV to get him to come to her apartment. FV stalled for about a day by calling a number she knew had been disconnected; but she eventually yielded and reached MV after being raped by three of the intruders, and urinated on by one of them.

         Accilien, the brother of Jean Philippe (who was the author of the Accilien Letters), became involved in the early stages of the robbery when he telephoned Jean Philippe in an attempt to borrow money. At Jean Philippe's request, Accilien purchased duct tape and latex gloves and brought them to FV's apartment, where Jean Philippe and Cole informed him that they were in the middle of a robbery. When Accilien expressed unease and decided to leave, Jean Philippe told Accilien to bring their nephew Delva to FV's apartment to assist because Delva had had more experience than Accilien in committing robberies. Accilien returned with Delva. All of the robbers donned the latex gloves brought by Accilien and waited for MV to arrive.

         Accilien and Delva left FV's apartment on September 3; Delva returned early on September 4. MV arrived thereafter and was held captive by Cole, Jean Philippe, and Delva, attempting to force him to disclose where he kept his cash. MV was bound, blindfolded (albeit ineffectively), stabbed, and repeatedly beaten. Accilien, who had remained at home, attempted to call Jean Philippe, Cole, and Delva to learn whether the robbery was proceeding as planned; when none of them answered their phones, Accilien went to FV's apartment to see whether everything was all right. MV ultimately capitulated and revealed the location of his cash. Cole and Jean Philippe went to that location while Accilien and Delva remained behind to guard FV and MV. During that time, MV managed to shift his blindfold sufficiently to see Accilien, who complained to Delva about the intruders' blindfolding proficiency. Accilien testified that Delva then readjusted MV's blindfold and hit MV several times with a mop handle.

         The home invasion ended on September 4, after the robbers got, inter alia, more than $40, 000 in cash, jewelry, and clothing, along with six pounds of marijuana and FV's car.

         B. The Early Investigation

         The investigation of the kidnapping and robbery was led by FBI Special Agent John Reynolds and NYPD Detective Ellis Deloren. Deloren arrived at the kidnapping/robbery scene and spoke with FV and MV before they were taken to a hospital, and he later interviewed them at the hospital. Deloren prepared photographic arrays, each of which included one suspect. FV identified Cole from one array; MV identified Jean Philippe from another. A sealed federal indictment was filed in late October 2012; Cole and Jean Philippe were arrested about a week later, and the indictment was unsealed as to them. Pictures of several items stolen from MV were found on Cole's cellphone.

         MV also identified Accilien from a photo array. Accilien had a significant criminal history, which included a charge of assault on a police officer, and Deloren found in police files Accilien's last known address, a second-floor apartment on South Oak Drive in the Bronx. Deloren went to that address under the guise of looking for someone else who was supposedly wanted for a different crime. Accilien himself answered the street-level outer door, thereby allowing Deloren to infer that Accilien still lived at and/or frequented that address. An arrest warrant for Accilien was issued.

         At about 6:00 a.m. on June 4, 2013, approximately 10 Officers, led by Deloren and Reynolds, went to the South Oak Drive address, knocked on the outer door, and identified themselves as police. Deloren, through the door's window, saw a man he thought was Accilien start to descend the stairs and promptly retreat; the Officers then breached the door and entered. In the second-floor apartment they found Accilien, a woman and two children, and three other men--including Delva, who at that time was not a suspect in the kidnapping/robbery.

         C. The Denial of Delva's Suppression Motions

         The events following the Officers' entry into the building are recounted in the findings of the district court in denying Delva's initial suppression motion--which challenged the seizure only of the drugs and gun. See United States v. Delva, No. 12 Cr. 802, 2014 WL 465149 (S.D.N.Y. Jan. 27, 2014) ("Delva I"). The findings in that opinion--uncontested on appeal, except for a general challenge to credibility--include the following.

         "The outer door entered onto a staircase that leveled off at a landing adjoining the kitchen. There was no interior door between the stairs and the kitchen." Delva I, 2014 WL 465149, at *2 (citations to the suppression hearing transcript ("H.Tr.") omitted). The apartment consisted of a kitchen, a bedroom/living room (the "living room"), a second bedroom (or "bedroom"), and a bathroom. "The apartment was about 500 square feet in total." Id.

As Reynolds was climbing the stairs, he could see Accilien at the top looking down at him. Both Reynolds and Deloren were stating: "Police, get down." Accilien complied and lay down on the floor in the kitchen. As Reynolds reached the top of the stairs, he saw two other men in the kitchen; Reynolds stepped further into the kitchen and instructed the two other men to get down. The kitchen was very small. Reynolds then noticed somebody in the second bedroom . . . . [whom he] later identified . . . as Delva.

Id. at *3 (citations to H.Tr. omitted). Both Reynolds and Deloren observed Delva inside the second bedroom walking toward the kitchen. See id.

Reynolds instructed Delva to get down on the ground. Delva did not immediately comply; Reynolds had to instruct him several times, and he did eventually comply. When Delva was lying on the ground, his head was in the bedroom near the doorway, with the rest of his body and legs stretching behind him into the bedroom. Reynolds then stepped either to the side of Delva or over Delva to make sure no one else was in the room. Reynolds testified that he could not see the entire bedroom from the kitchen and needed to enter the bedroom to determine if anyone else was in that room and whether there could be any threats coming from that room.
When Reynolds entered the bedroom and looked to see if anyone else was present, he noticed a closet, the door of which was ajar. He saw a clear, plastic bag on the floor of the closet that contained a white, powdery substance which he believed to be drugs. The bag was on top of or right next to sneakers. Reynolds testified that he did not touch anything or open anything before seeing the bag and the sneakers.
Immediately thereafter, Deloren entered the bedroom. He [had] handcuffed Accilien very quickly and proceeded to the second bedroom. He saw that Delva was on the ground, his body completely inside the bedroom. Reynolds was focused on Delva and told Deloren about the bag in the closet. Deloren stated that the closet door was open when he approached it. He could see the floor of the closet and saw a clear, plastic bag with a white powdery substance in it; based on his experience he believed it to be cocaine. Deloren bent down to pick the bag up and saw that just to the side of it, only a few inches away, was a sneaker with a firearm in it. The gun was inserted barrel-first into the shoe. Deloren then used the word "lunch" to notify Reynolds and others that there was a gun. Deloren then quickly recovered the gun and made it safe by removing the magazine and emptying the chamber.
As he was handcuffing Delva, Reynolds heard Deloren almost immediately use the word "lunch, " which Reynolds understood to be code for "gun." Reynolds then moved Delva into the kitchen with the others. Only two minutes had elapsed between the time the Officers entered the apartment and the apartment was secured with the men in handcuffs in the kitchen. Deloren testified that the men in the apartment were handcuffed to ensure officer safety.
Reynolds and Deloren then brought Accilien into the bedroom and asked him to identify the other people in the apartment; Accilien identified Delva as his nephew and the closet in the bedroom as belonging to Delva.

Delva I, 2014 WL 465149, at *3-*4 (footnote and citations to H.Tr. omitted) (emphases added).

         The district court concluded that given the presence of other people in the apartment and the Officers' knowledge of Accilien's criminal history, "it would . . . have been imprudent and unreasonable for the Officers to have entered the premises, seen the other men, and not conducted a protective sweep." Delva I, 2014 WL 465149, at *6 (emphasis added). Further,

when Reynolds saw the defendant in his bedroom, moving towards them, it was only prudent for Reynolds to ensure that the defendant was not going to create a safety issue. It was therefore perfectly appropriate for Reynolds to instruct the defendant to "get down." Reynolds and Deloren testified that, when the defendant was on the ground, he was positioned entirely inside the bedroom. There is no doubt that it was appropriate for Reynolds to step into the bedroom at that point in order to secure the defendant. Once Reynolds entered the bedroom, it was perfectly reasonable for him to look quickly around the room to determine if there were any other individuals in the room who might constitute a safety risk. In doing so, his eyes noticed the open door to the closet and drugs in plain view. Deloren's entry to assist Reynolds led to recovery of the drugs Reynolds saw as well as the gun immediately next to it, which was also in plain view.
There is no evidence in the record that the drugs and gun were not in the position in which Deloren and Reynolds testified they were in--on the floor of the closet, with the door open, in plain view.
Under these circumstances, the factual record is straightforward and supportive of a reasonable search and seizure of the [drugs and gun]. Under the circumstances described above, the protective sweep conducted by Reynolds and Deloren was reasonable. In addition, there is no factual basis to suggest that, once Reynolds and Deloren were in the bedroom, the [drugs and gun] w[ere] not in plain view. All of the evidence before the Court is that they were. Given the highly incriminating character of these items, their seizure was therefore perfectly lawful.

Delva I, 2014 WL 465149, at *7 (emphases added).

         The district court also noted that, "[o]n cross-examination, " at the hearing, "Deloren testified that, when the Officers first went to the residence, their intent was to arrest Accilien but not conduct a search; after recovering the [drugs and gun], the Officers then performed a general search." Id. at *7 n.5. However, the court concluded that that "testimony d[id] not undermine the legality of the recovery of the [drugs and gun]--these items were found in plain view during what was clearly a protective sweep." Id.

         At the hearing on Delva's initial motion--to suppress the drugs and gun--Reynolds and/or Deloren testified that in the June 4, 2013 raid on Accilien's apartment, cellphones (one of which they later learned belonged to Delva) and the Accilien Letters had also been seized. Deloren testified that he saw the envelopes on the top of a small cabinet; he recognized that Accilien was the addressee and that the sender was Jean Philippe, whom Deloren had arrested in November 2012 in connection with the kidnapping and robbery of FV and MV.

         During the hearing with respect to the drugs and gun, Delva expanded his suppression request to include his cellphone. The district court invited supplemental briefing on that request, and Delva's supplemental reply brief added a request to suppress the Accilien Letters. The government's position was that "law enforcement observed [those] items in plain view"--along with the drugs and the gun--"[d]uring a lawful protective sweep." (Government's Memorandum of Law in Opposition to Defendant David Delva's Motion To Suppress His Cellular Telephone, dated February 3, 2014, at 3-4.)

         The district court, relying on evidence presented at the hearing following Delva's motion to suppress the drugs and gun, denied these supplemental motions to suppress Delva's cellphone and the Accilien Letters. See United States v. Delva, 13 F.Supp.3d 269 (S.D.N.Y. 2014) ("Delva II"). The court reiterated many of the findings it had made in Delva I with respect to the need for a protective sweep of the apartment and the plain-view observation of the drugs and gun, see, e.g., Delva II, 13 F.Supp.3d at 272 ("The facts relevant to resolution of this motion were established at the evidentiary hearing on January 21, 2014. They are recited in this Court's January 27, 2014, 2014 WL 465149, decision on defendant Delva's first motion to suppress . . . ."), and it made additional findings focusing on the cellphone and the letters.

          With respect to the cellphone, the court noted that the Officers had gone to the apartment to arrest Accilien because

Accilien was alleged to have participated in a brutal robbery and kidnapping. At the time of the arrest, the officers who entered the Apartment knew that one or more cell phones had been used during the robbery and kidnapping.

Delva II, 13 F.Supp.3d at 271. After noting that the government argued that the Officers had seen "drugs, a gun, and the Cell Phone in plain view" "during the course of legitimate efforts incidental to a protective sweep that was itself incident to the arrest of Accilien, " and that it was "undisputed that the Officers saw the drugs and gun prior to seeing the Cell Phone, " id. (emphases added), the court stated that

Delva's arguments on this motion are the same as those on his prior motion with respect to the gun and drugs: (1) the Officers[] had no need or right to enter the Apartment; (2) once in the Apartment, the Officers had no right to enter the bedroom which the defendant shared with others; (3) that the Cell Phone, which was recovered in the bedroom, was not in plain view; and (4) even if the Cell Phone was in plain view, it was not in and of itself contraband, evidence of a crime, or associated with evidence of a crime,

Delva II, 13 F.Supp.3d at 271-72 (emphases added). The district court rejected those arguments, noting that Delva

proffered no evidence, nor elicited any evidence on cross-examination, that at the time it was seized, the Cell Phone was not in plain view in a bedroom that had been occupied the previous night by ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.