United States v. George Robert Gorski
852 F.2d 692
2d Cir.
1988
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*1 L.Ed.2d 396 Whether Prudential promotion for is an issue

considered Cowan fact, legal theory, and not of as the finding amply supported,

district court’s

it will not be disturbed.

Judgment affirmed. America, Appellee,

UNITED STATES GORSKI,

George Robert

Defendant-Appellant.

No. Docket 88-1054. Appeals, Court of

Second Circuit.

Argued June 1988. July

Decided Dennis,

Thomas G. Federal Public De- Hartford, Conn., fender, defendant-ap- pellant. Fatsi, Atty.,

Donna L. Asst. Hart- ford, Conn., appellee. *2 day p.m., 1:25 following about the MINER, On and LUMBARD Before meet Gor- Catucci Gorski. CONNER, saw Ron District Foster Judges, and Circuit drove to car and both entered Catucci’s ski

Judge.* Unionville, Connecti- store in fish Catucci’s CONNER, District WILLIAM C. ride, described Gorski During the cut. Judge: Denver area. dealings in the Gor- cocaine 1987, 30, Gorski for Robert source that his current reported November ski On pursu- guilty, Miami, Florida, plea of of Ralph a conditional Yanes entered cocaine was Fed.R.Crim.P., one to 11(a)(2), $23,000 kilogram. per Rule him charged ant to who to dis- conspiracy him with to resume charging like that he would count said Catucci 21 U.S.C. of business, in violation no one cocaine that had he tribute but his cocaine of decision the appeals now and deal Gorski Miami with him to go to reliable § for the Court District to States volunteered the United Yanes. Gorski directly with Dorsey, (Peter C. pick up District Connecticut cocaine “mule” the his own have 1987, 20, deny- on October Judge), entered to bring it Connecticut. and Florida to motion ing Gorski’s store, the stop at Catucci’s a brief After inci- conducted during a search discovered call phone to Yanes pay to a men went two inculpa- to and dent to price for the cocaine. inquire about and follow- made Gorski which tory statements home, the not at and was Evidently Yanes part and affirm in We ing his arrest. would Ron Catucci men that agreed two proceed- for and remand reverse call Gorski himself then contact Yanes part. ings in and make Denver, price the give him Background delivery. Ron Catucci for arrangements 1987, Agent Richard Special for his April airport On to drove Gorski then Investiga- Federal Bureau Foster Denver. flight to return call from telephone received a (“FBI”) tion again following day, Ron Catucci theOn that an Foster told Catucci Catucci. Alfred Florida, re- the FBI with called Yanes “Whitey” had referred individual telling After conversation. cording the asked previous weekend called “Whitey,” with spoken had he that Yanes business,” “doing was interested Catucci price by Yanes told Catucci cocaine busi- to mean he understood he could said that Catucci be “23.” would Whitey he he told said that Catucci ness. Whitey that but to Florida down not come Ron interested, his sons that but delivery. for the arrange would Tom would be. Ron Catucci and Tom told Foster 21, 1987, A1Catucci April On narcotics on been convicted had previously Ron. his son for called had that Gorski with the cooperating and were charges that in a conversation day, that Later investigations. narcotics government that recorded, told Gorski Ron also called Catucci Alfred April On un- Foster bucks.” cost “23 would “fish” “Whitey” him that again and told Foster kilogram of that to mean this derstood arriving be would say he just called had $23,000. told Gorski cost would cocaine day. Fos- following Airport the Bradley price. that anticipated had that he Ron told who Ron Catucci spoke ter then spoke Ron Catucci April name On real “Whitey”, whose that Foster Gorski him that told Foster with arriving at Gorski, be Robert was in he implied and had called possible to discuss 16th April 1:30 on fol- theOn area. Haven, Connecticut New agreed Catucci Ron cocaine. sale Catucci Ron p.m., day at about lowing a wear airport meet call received just he had told so transmitter wire and restau- at a he was said who from conversation monitor could Hartfort, from the street across rant York, desig- sitting * of New District Conner, Southern District United States C. William Hon. nation. Court District Judge, Connecticut train station. Gorski said the laboratory whole arriving cocaine would be at about 5:00 tests which confirmed that p.m., he and that wanted meet Ron Ca- contained cocaine. While at FBI head- p.m. Gorski, quarters, tucci at about 4:00 at the restaurant. already who had rights advised of his Miranda twice *3 4 Shortly p.m., before Foster fitted Ron agents, other questioned by Foster and and him Catucci with a transmitter sent incriminating made statements. the restaurant to meet with into 10, 1987, Portions of the conversation between Ca- On June Gorski filed a motion by tucci were overheard suppress and Gorski the evidence found as a result agents say- in the area. Gorski heard of the search of bag, the black man,” ing that “his which Foster under- Following made to Foster. an courier, evidentiary hearing, stood to mean his would be arriv- the district court ruled ing by approximately p.m. 5:30 that the bag bus Gor- warrantless search of the the bus station ski said the man looked like Edward G. was not incident to Gorski’s arrest, compelled was not by exigent Robinson. Foster heard Gorski tell cir- Catucci pursuant cumstances and was not that he believed the “mule” would be arriv- inventory procedure. administrative ing Trailways Station. evidence, suppress court refused to p.m., A few minutes after 6 a surveil- however, finding that its ultimate agent reported lance at the bus station Williams, was inevitable. See Nix v. Foster that had met someone and 431, 434, 2501, 2504, U.S. 104 S.Ct. carrying person’s bag. Within (1984). L.Ed.2d 377 The court also denied seconds, Gorski, carrying Foster saw a the motion to Gorski’s statements vinyl bag, walking black with a man who finding they to Foster were made “vol- description matched Gorski’s of the courier. untarily exchange and in an which was not Agents pair continuously, watched the and by any questions initiated asked of him.” approached when the two men Catucci at F.Supp. United States car, agents moved in to arrest the (D.Conn.1987). 933-34 drawn, guns three men. With shout- Discussion put ed “FBI” and ordered the men to their top hands on of the car. As the arrest attempted Foster justify his initial made, Foster took the black from Gor- vinyl bag of the black as incident to side, ground ski and set it on the security one and a lawful arrest and a precau- both defendants were frisked and tion. The hand- district court found that thereafter, transpired immediately cuffed. Almost events which at the bus station unzipped prior Foster opened the black conformed with it, plans in finding weapons previ- inside no described but a FBI, ous plastic in conversations monitored wrapped plastic bound gave federal reasonable tape. prior investigations, From basis narcotics believing that Gorski and Cabrera were recognized packaging Foster as similar process delivering kilogram size, shape appearance to that com- previously cocaine to consummate the ar- monly used to contain a of co- ranged sale. There was also reason to caine. believe contained the cocaine. man, Joseph Gorski and the other Cabre- Accordingly, probable cause then existed ra, rights were advised of their and said bag. for the and the seizure arrests they understood them. Gorski indicated statement, However, that he did not want to make a an immediate search of and both men the FBI per were taken to office without a warrant would be there, booking. punched only exigent Once a mitted circumstances exist wrapped package Exigent hole the end of the ed. are one of the circumstances sample powder “jealously carefully excep removed a of white on few drawn” which he conducted a field test which tions to the need for a search warrant. proved positive They only for cocaine. He then sent have been found to exist Accordingly, where societal costs obtain- record. the initial search was “those cases warrant, danger properly offi- ruled to be such as to law unlawful. ing a risk of loss or destruction cers or the Nevertheless, the district court denied outweigh prior the reason for re- the motion to the evidence in re- magistrate.” to a neutral Arkan- course liance on Court’s decision Sanders, 753, 759, 442 U.S. sas v. Williams, Nix v. 2586, 2591, 61 L.Ed.2d 235 In ana- 2501, There exigent lyzing whether circumstances Court held that evidence concerning the present justify in this case so as a war- location and condition of the aof search, court, following the district ten-year-old girl rantless whom the defendant had retrial, evidentiary hearing murdered an found could be introduced at his *4 though police even the body were led to the bag belonged to Cabrera. It was [t]he through during admissions elicited custodi- turned over to Gorski. At the scene interrogation al found unconstitutional in arrest, the it had been taken from Gor- appeal. an earlier in The Court Nix ob- ski, placed both under defendants served that the would have been dis- handcuffed, bag was arrest and covered without the defendant’s admissions presence placed ground, on the all the a progress because search had been in at agents, all of whom had their of several the time and search-team members were bag The thus not ac- guns drawn. of the body. close the location It to either defendant. was not cessible bag that the mobile the sense discovery The is inevitable doctrine going nowhere other than with the rule; exception exclusionary an to the it Building. Federal There agents to the admitted, permits evidence to be even getting a neither risk of a defendant though unlawfully, it was obtained when bag of a weapon in the nor a risk government the can show that absconding with destroying defendant or by the inev lawful means was bag. Though necessary evidence from the the exception itable. This to en argues the search was government society that sure that “the interest of in deter arrests, presum- police ring public lawful as incident unlawful conduct and the procedure, juries claim all ably security having proba as that interest in receive properly of a crime are bal stand. The facts at the time of tive evidence cannot same, police in suggest exigency putting no in the anced the search worse, position that would have a risk of either harm to the form of police 671 been in if no error or misconduct agents or loss of evidence. 443, (D.Conn.1987). 104 2509 F.Supp. occurred.” Id. at S.Ct. at at 931 original). (emphasis in amply findings, on these which are Based case, record, inventory present In by the the district court supported a proper FBI office was bag the warrantless search properly found that arrest and de- by exigent incident of Gorski’s lawful justified was not circumstances ruling Court’s bag sus- tention under the since the was inaccessible 640, 103 Lafayette, U.S. pected drug dealers and “there was not the Illinois v. In that danger luggage] slightest or its S.Ct. [the case, for breach of Lafayette was arrested contents could have been removed before a booked, being he peace. As he was search warrant could be obtained.” valid bag on the counter. Sanders, placed shoulder U.S. amphet- Chadwick, opened An it and found officer quoting States v. Lafay- discovery, 1, 13, 2476, 2484, on that 53 L.Ed.2d amines. Based il- possession of prosecuted claim ette was government’s The other claim legal rejecting Lafayette’s In initially drugs. bag pursu- was searched of his shoulder violated procedure the search inventory to an established ant rights, the Court Amendment merit- Fourth found the district court to be ‘unreasonable’ for that “it is not unsupported by anything held less and is police, part procedure of the routine process in the of consummating a cocaine incarcerating per- incident to an arrested sale at the bus station. It is therefore son, to search container or article that, clear even had not been possession, in accordance established searched at the time of the inventory procedures.” 462 U.S. at would have brought to the FBI office police may 103 S.Ct. at 2611. The conduct to be booked and detained at least until he probable search without brought could be magistrate. before a Al- obtaining and without a search war- though under Lafayette Illinois v. it would rant. Id. 103 S.Ct. at 2608. The proper have been conduct an range governmental Court discussed the search of Gorski’s incident to such support type interests which this of search detention, it does not follow that such a including dangerous the need to remove search was inevitable. property, items from the police to deter district court found that: theft, thefts or false claims of to deter remained intact after the allegations [h]ad police did not seize the arrest, its contents would particular have been dis- person, items from the arrested closed at the prevent inventory. and to mishandling process theft or of arti- That clearly person. cles taken from the arrested Id. at have occurred and it was *5 646, 103 at dependent S.Ct. upon, nor would it have brought of, about reason nor Shortly Supreme after the Court’s deci would it have upon (except followed sion in Lafayette, Illinois v. this Court time), illegal search. confronted a similar factual scenario in (citations F.Supp. at omitted). (2d United Lartey, States v. 716 F.2d 955 Cir.1983), where the defendant’s briefcase The finding that Foster’s search of Drug was searched at Agen Enforcement at the FBI inevitably office would cy headquarters following his arrest. The have led to the of the cocaine is judge, district conducting without an evi- clearly However, correct. there was no dentiary hearing, held that the search of support evidence to necessary the briefcase was valid as incident ar finding that it was inevitable that such an rest. appeal, On this court remanded the inventory search would be conducted. A case to the district court to conduct an thorough review of the record reveals no evidentiary hearing disputed and resolve evidence that such searches were an invari facts concerning this In discussing issue. able, procedure routine booking possible evidentiary results of the hear suspect detention of a particular ing, this Court took note of the Indeed, office involved. only mention Court’s recent decision in Lafay Illinois v. inventory search was the brief state ette, and directed the district court to con ment in Foster’s testimony that in “[a]n possibility sider the that the search of the ventory was done later my office. We part briefcase “was of a routine standard searched the bag for weap cocaine and procedure ized making administrative ons.” Appendix Government’s at 15. valid Lartey’s belongings as booking an incident to incarcerating an We therefore have no alternative but to person.” arrested Id. at 966. The clear reverse the district court’s denying order implication ruling of that is that if the Gorski’s motion to the evidence district court so evidentiary found after the found in the search of the and to hearing, the evidence would be admissible evidentiary hearing remand for an on the under Lafayette. Illinois v. factual issue whether an search Here, of the procedure Gorski and Yanes had was a routine been under incident booking surveillance suspect law enforcement and detention of a authori- ties for a days prior question. number of the FBI office in If the evidence during arrest as well as hearing the actual sale of adduced at the establishes that it was, cocaine. Law enforcement officials it knew would follow that the in the cocaine with reasonable certainty inevitably that Gorski was have been discovered subject time of his is therefore ad- arrest it was through lawful means and then there delay. v. without under the rule of Nix Williams. missible Andrade, v. Accord United States allowing, expect- The reasons for indeed (9th Cir.1986). F.2d 1431 ing, the law officers of to search an arres- upon tee arrest are recognized well Finally, that Gorski’s we conclude beyond question. The officers must make Agent admissi sure safety safety for their own ble, held. There was court as district bystanders person has arrested no ample indicating that weapon with to resist arrest. Be- rights. twice informed of Miranda weapons always per- a search for is initially declined to make While he missible, it well that any is established statements, it clear from record that evidence of crime discovered course agreed talk he reconsidered and when subject of such a search is to seizure. See Foster, Agent Robinson, 414 U.S. careful, urged in a reconsideration [was] 38 L.Ed.2d 427 great at not too noncoercive manner appearance weight con- context that de- length and in the [the] firmed the belief the officers that it right not to fendant’s assertion of contained of cocaine. Even speak honored. [was] so, elementary it is law enforcement to Collins, 462 F.2d United States v. guard against possible surprise. (2d Cir.), denied, 409 U.S. cert. necessary. There is no No warrant Accord plain and certain as this reason cases ingly, the mandate was not violat Miranda require any blessing judicial one to from a ed. Id. *6 that a officer or establish later above, For the set forth reasons would have led to the same result. search denying portion of the district court’s order judgment I in all re- would affirm Gorski’s motion to cocaine is spects. pro- reversed remanded opinion. ceedings with this consistent

denial of Gorski’s motion

inculpatory statements is affirmed.

LUMBARD, Judge, concurring Circuit dissenting: affirming

I the denial of Gor- concur suppress his ski’s motion to SHABAZZ, Appellee, Hassan I dis- government agents after arrest. inquiry court’s remand for sent from the III, COUGHLIN, A. Commis- Thomas into whether an Smith, sioner, Harold J. procedure. a routine Appellants. Superintendent, the conversation overheard two Given 1273, Docket 88-2161. Catucei, No. hours earlier Gorski and between every reason believe Appeals, Court bag con- had delivered to Gorski a Cabrera Second Circuit. Thus, taining of cocaine. Argued June 1988. probable agents had arrest they approached and Cabrera When July Decided drawn, guns Cabrera put top on their hands ordered so, took the

car. As did ground. put it on the As

from Gorski and possession

an article which was Gorski’s