United States v. Ralph Joseph Palumbo

America, Appellee, UNITED STATES PALUMBO, Defendant,

Ralph Joseph

Appellant. 82-1102.

No. Appeals,

United States Court

First Circuit.

Argued Sept. 1983.

Decided March 1984.

Opinion Rehearing on

Sept.

Skelton, Judge, sitting Senior Circuit

by designation, opinion. concurred with

Bownes, Judge, Circuit dissented with

opinion. informant, Walker

tween and John sale, Bradley, setting up the Walker identi as supply. fied Palumbo source of his agreed to the deal Walker consummate on Salem, Hampshire. in July New The law enforcement team commenced sur July Trooper veillance of Walker on 14. Hampshire of the Williamson New State Police observed Walker’s car leave the Pa place residence lumbo and drive to des ignated sale, for the Inn. the Salem Brad Graffam, ley agent and DEA Gerald who Plain, Mass., by Levy, David Jamaica working was undercover as informant Taff, Court, with whom appointment driver, $25,000 Bradley’s in displayed a Plain, Mass., was Presley, Jamaica Levy & to briefcase Walker. then Walker stated brief, defendant, appellant. on for that Palumbo did to travel not want to Forsyth, Atty., Con- Helen J. Asst. U.S. completed Salem and sale would be in N.H., Thayer, cord, Stephen whom W. Dover, Hampshire. New Dover is about Johnston, III, Atty., Richard F. Asst. U.S. from five miles Palumbo’s home Ber Concord, brief, N.H., on for Atty., was U.S. wick, Maine. appellee. day, approximately Later at 5:00 p.m., Bradley lounge Walker and met in the BOWNES, Judge, ALD- Before Circuit Inn a of the Ramada in Dover. After brief SKELTON*, and Senior Circuit RICH conversation, Trooper Walker left the Inn. Judges. surveillance, Williamson, utilizing aerial ob- ALDRICH, Senior Circuit BAILEY him drive to home served the Palumbo and Judge. pick up Palumbo. Walker’s automobile in the shortly parking was thereafter seen proceeding Ralph J. Palumbo In this the Ramada Informant Bradley lot of Inn. pos his three-count conviction appeals entered the Walker car where Walker and distribute, to of cocaine with intent session paper a sitting Palumbo were brown § 841(a)(1) and 18 of U.S.C. violation bag passed Bradley. After observ- § Although 2. there was a warrant- U.S.C. bag, ing powder Bradley a in the white occupancy of Palum less signal gave the and Palumbo Walker subsequent his arrest bo’s home At moment of the were arrested. ar- amendment, the fourth it had violated rest, Bradley informant the back taint consequences, and we hold it did not powder package seat with the of white discovered and seized as items later empty A test briefcase. field revealed probable a cause and result of powder to be cocaine. valid warrant. approximately arrests occurred informer, assistance With the later, A p.m. short time it was decid- 6:00 offi comprised team law enforcement for the ed to obtain search warrant Pa- Police, Maine the New from the State cers Berwick, A home in Maine. search lumbo Police, federal Hampshire State and the approximately warrant authorized (DEA), Drug Enforcement Administration judge. p.m. 11:00 a Maine state purchase of cocaine arranged ten ounces pause plaintiff’s Walke here Palumbo’s codefendant Robert We to address con- from During telephone conversations be tention that there intentional reek- r.1 * Circuit, issues, designation. involving variety already sitting by has been the Federal Of Walker, Cir., decided. See United States v. Although and Walker defendants Palumbo F.2d 28. pressed by jointly, appeal this were tried appeal, Walker’s Palumbo alone. Codefendant in the DEA computer less misstatements affidavit for the indicated that Donna warrant, necessary which statements were Palumbo had been rumored to inbe drug trafficking to the determination cause. business with her hus- hearing The court held a under v. band. Franks Graffam felt that Palumbo would Delaware, 1978, 154, 171-72, expected have been home his wife short- 2674, 2684-85, 667, ly and, drug S.Ct. after the sale if he did not that, fact, up time, in intentional mis- show within found certain a reasonable she Nevertheless, something happened had been made. would assume statements had that, destroy any drugs him and excluding it held even these state- in the house. ments, She also probable directly, the affidavit established learn trouble being there agree. witnesses at the Ra- cause. We numerous arrest, watching mada Inn and Palum- Stripped essentials, to its being fairly bo well-known in the area. misstatements, without the affidavit police had no affirmative evidence to (1) still established Walker stated Pa up apprehensions, back these and we con- cocaine, (2) prior his for lumbo was exigent sider it a rather thin case of cir- transaction, to the Walker stated that Pa cumstances, anything which should be but meeting place had that the lumbo asked be note, passing, automatic. We do in Dover, changed Hamp from Salem to New complaint defendant’s shire, place home, (3) nearer Palumbo’s ignorant as to whether Mrs. Palumbo was travelling Walker was observed to Palum unjustified. at home is As a result of immediately prior home bo’s to the transac knocking they prior knew she was home tion, returning toward the Ramada Inn entering, and there they is no evidence that Palumbo, (4) in Dover with and Walker and planned entry a forceful if the house was govern Palumbo transferred cocaine to the vacant. ment informant at the Dover Ramada Inn. Warrant affidavits are to be read a com p.m., Sometime between 6:30 and 7:00 contingent mon sense manner. United v. States Ven officers went to the tresca, 1965, 102, 109, 380 U.S. 85 S.Ct. Palumbo home. When Mrs. Palumbo 741, 746,13 opened door, L.Ed.2d 684. Here we have no two officers showed their badges, finding magistrate consent, entered trouble had a “sub the house without concluding, they stantial basis” for informed her had see cause Illinois Gates, 1983, 213, to search the awaiting house and were 462 U.S. 103 S.Ct. 2317, 2331, 527, arrival of a search warrant. Three or more L.Ed.2d that there was officers, clothes, plain also then entered “reasonable cause to there believe” the Palumbo residence. Mrs. Palumbo de- dealing evidence of cocaine in Palumbo’s manded to see a warrant. After the offi- side his home. See Zurcher v. Stanford coming, cers said one Mrs. Palumbo 547, 556-57, Daily, 436 U.S. 98 S.Ct. home, ordered them 1970, 1976-77, they out of her 56 L.Ed.2d 525. The war refused, telling they her that were “secur- valid, rant despite was therefore the misdi ing premises” anticipation police. rected effort of the arrival of the warrant. Mrs. Palumbo At the same time that the officers decid- teenage asked if she and her two children warrant, they ed to obtain a search also could leave and she was told that her chil- decided to “secure” the Palumbo home leave, dren could but that she could not. pending application for, and the authoriza- of, Apparently tion the warrant. this deci- The Court has noted that “imminent destruction, removal, sion was communicated to Assistant Dis- concealment of Attorney Libby, trict approved who it. The may type to be seized” be one [evidence] agent reason DEA gave Graffam justify circumstance which would suppression hearing “securing” dwelling. the Pa- Warrantless into a United prior obtaining 48, 52, lumbo home Jeffers, warrant States v. that, prior transaction, 93, 95, 59; to the a check 96 L.Ed. Johnson v. Unit- ed, States, they leave after a search of what elected to 367, 369, 436. We have so held. 92 L.Ed. take them. We need not address the DiGregorio, Cir., 1979, United States searches, propriety except of these to note 1184, 1188, 605 F.2d presumably goal them consistent with the 937, 944, 983, preserving Perhaps evidence. fortu- Edwards, 197; L.Ed.2d police, nately they for the failed to discover Cir., 468. When such searches, evidence in of their and noth- found, however, an the least exigency ing observed was contained in the adopted, is to or thé restrictive intrusion When, application for the warrant. some- requirement constitutional for ob whole nearing midnight, a contingent time new taining a defeated. warrant proper warrant, arrived with a presently that no one is When it is known dark, house was with the initial officers premises, they may on the be secured sitting new, thorough outside. A and more by guarding merely the entrances. Cf. search was then instituted. No cocaine or 1980, Agapito, 2 Cir., United States v. 620 drugs found, scales, guns, other were but denied, 324, 834, 337 cert. F.2d weights, empty an can said to have con- 107, 40; United L.Ed.2d 101 S.Ct. 66 cutting agents, pouch tained a leatherette Cir., 1977, Young, 8 States v. 553 F.2d containing glass vials, and a handscale and 1132, 1134, 959, cert. 431 97 U.S. question other items were seized. The is 2686, persons 53 L.Ed.2d 278. When S.Ct. whether, assuming police the earlier action persons may reason present are and such unlawful, denying the court erred in ably pose feared to a substantial threat be suppress Palumbo’s motion to these arti- evidence, destroy more intrusive action cles. United States v. Ed may proper. be Cf. wards, ante, 602 F.2d at 461. Even then, exclusionary The rule is a well set police might give well be advised to penalty designed discourage improp tled exiting premises. occupants a choice of police by practical expedi er behavior DiGregorio, v. ante, See United States 605 preventing ent of the use of what had been might accompa 3. This F.2d at 1188 n. be wrongfully standpoint obtained. From the by very quick pass nied “a and limited this, guilty of the defendant even a through premises to check for third sense, windfall; why is a there is no reason persons may destroy evidence.” Unit who penalty go beyond should the offense. ante, Agapito, ed States v. 620 F.2d at 335. long The Court has held not all evi assuming Even here had suffi- dence linked to an inad unlawful search is “secure,” grounds cient to enter and at Lum early As Silverthorne missible. as they extent least to minor acted exces- States, 1920, ber v. Co. United 251 U.S. Upon entry, they sively. fanned out 182, 183, 319, 64 L.Ed. house, through sight outside the of the stated, the Court family in Palumbo the kitchen —Mrs. Pa- “If knowledge gained is from [facts] Palumbo, Sr., lumbo, A Mr. and children. source, they may an be might justified look around brief other, proved knowledge like but the persons present, check whether other gained by government’s wrong own ante, Agapito, United States v. they but cannot be used it.” further, and, least, went at the searched paraphrased by upstairs. This statement was carry bag The J.M. Mr. Palumbo Sr.’s Guilt, (1959), Maguire, 221 court also found that one officer conducted Evidence approval Wong v. quoted Sun Unit- a limited search of the kitchen hutch. States, 1963, might justified 471, 488, ed While this last as a safe- 371 83 check, ty upstairs searching 407, 417, 9 L.Ed.2d 441. excusable. “Bather, apt question the more such ‘whether, evening. granting case is establishment

passWe over the rest of the ultimately primary illegality, were allowed to of the the evidence to Palumbos 660 nucan, Cir., 1983, 838, 1 708 F.2d 843. The objection is made has been instant

which however, fact, illegality it remained in exploitation of that come at sufficiently custody distin- at all times thereafter does hot by means or instead primary by proof of the purged preclude removal of the taint guishable to be ” discovery would have been inevitable. taint.’ Edwards, ante, 602 F.2d United words, bad conduct condemns In other (alternative holding); at 469 n. conduct, there is consequences of bad Cir., 1981, Segura, States 663 F.2d spill it to over and affect no reason for granted, same, were the consequences, even 430; United States v. truly independent good conduct. Beck, Cir., 1981, 530; see rule Invocation Allard, Cir., 1980, United States v. may forms. broadest take various courts, however, F.2d 1184-85. Two dis expressed by the term “inevitable might present recognized that this have Unit recognized in covery,” principle we original probable special problem: Bienvenue, Cir., ed States but, right spot, cause would have led to the wrong There the F.2d 913-14. detention, wrongful had it not been for the residence fully the defendant’s searched longer article have been and other materials and found check stubs event, wrongful seizure there. such agency led them to a travel where which apprehen would have contributed to the incriminating found. Even evidence was sion. though was discovered as a this evidence Allard, ante, United States v. In the conduct, result of unlawful direct there insufficient court found that was would, reason, sup normally for that justify entry cause to warrantless to se- a pressed, we declined to do so because of recognized government’s right cure. It finding police the court’s that would prove discovery, and to inevitable stated agencies anyway, have travel be visited right by this was not lost continuous im- lawfully of information cause obtained. held, however, possession. initial, proper It unlawful seizure of the travel The suppress the motion to should have been agency irretrievably items did not taint them; upon proof granted government “the they became usable because [failed they inevitably demonstrate that the seizure made no would have been discovered to] instance, by proper practical means. difference.” “For prove government that under [did not] following In our this we were earlier circumstances the evidence not have Rose, McGarry’s Inc. v. Cir., case of government’s act. been moved” but for the 416, 418-19, aff'g Lord v. 344 F.2d F.2d, ante, at 1187. D.Mass., 1963, Kelley, F.Supp. where, Judge Wyzanski put it ante, sim Segura, United States v. In on the ply- hand, issue, recognized other the court this concluded, facts, it but on the was

“The owner of records is entitled to dis- Flattery unlikely well off as if that the defendant would have be as had not evidence, unlawfully papers, posed seized those he is of the and so denied the F.2d, ante, not entitled to be better off.” motion. 663 at 416. States, Cir., McGarry also v. United See difficult, The Allard rule imposes if 862, 870-71, impossible government, not burden on the independent eviscerating in effect source rule. We would take a different ap- source rule is to be approach. occupants going are Either the plied strictly. If the is found initial- article evidence, conduct, dispose or are not. ly wrongful it to as a result of the If, view, police insufficient to show that it could have been on the court’s had ade- en- independently, quate grounds disposition, it to fear their found must be shown that they had it would have been. United States v. Fi- try justified. would have been If follow, inadequate grounds, deciding should it In Segura, not the granting where sought of certiorari has prove already unless the defense by been followed argument, may contrary, probability that the that the Court well answer many questions. these and other going disposed evidence of? meantime we hold that indepen- all other elements of the at least when an Where unjustified entry established, good to secure is done rule were dent source we con- faith, reasonable, although with whipsawed insuffi- sider that the Allard court excuse, cient source rule government. applied can be unless there is affirmative is, however, aspect, There another illus- warranting finding that, evidence but for Segura. trated there re- entry, the articles would have been strained defendant a total of 19 hours of, disposed appears moved or or it warrant, awaiting 18 of which were entry unreasonably prolonged, to de- delays” prior consumed “administrative disadvantage. fendant's There was at making Confining application. a defend- enough least excuse here to satisfy our from, in, excluding premises ant him his test. long period, so especially for mere Affirmed. convenience, might administrative seem a gross abuse. An erroneous to se- SKELTON, Judge, Senior Circuit Sitting cure, good faith, might at least done in by Designation, concurring. forgiven by application well be of the inde- rule; pendent source all that defendant concur the result by Judge reached case, suffered such and all the did opinion case, Aldrich in his in this Ibut do wrong, premature entry. was a agree On the not his holding that the indepen- hand, grossly other the abuse of a exces- applicable dent source rule is under the detainer, indicating police sive indifference facts before us. This rule was neither dispatch, taint, to a need for is a different argued. Furthermore, briefed nor the dis- penalized by denying well be finding trict court made no on the evidence by independent a cure source. See with reference to it. Under these circum- Note, generally Police Practices and the may it questionable stances be whether we Tangible Threatened Destruction of Evi- are authorized to consider it.

dence, Harv.L.Rev. place, the next I any do not find question,

We need not decide this be- evidence in the independent record from an apply cause we not principle source that indicated that the items com- present here. The easily plained case satisfies the suppress of in the motion to independent source rule. The warrant was in the they might Palumbo house or that entirely upon probable based cause only learned found therein. The to this evidence prior original entry, to the and defendant effect came from the officers who executed evidence, has not even claimed that for the affidavit search warrant show- physical objects ing much more cumbersome cause for. its issuance. These drugs, than would have been somehow dis- were the same officers who made the war- posed of prior entry. had there been no entry rantless into the house. While the Five hours does not seem an question may debatable, excessive my opinion amount of time to obtain the warrant under information obtained from law enforcement the circumstances. apply United States v. officers who for a warrant and then Cf. (8 hours). DiGregorio, may ante It also by be violate the fourth entering, amendment whether, wondered where seizing searching defendant was and private residence elsewhere, at all times under arrest and not before the indepen- warrant is issued is not by delay, sense affected he had dent contemplated source by information standing complain any overstaying. the independent source rule. In such case He, course, complain had none to independent par- officers are not third bag. ties, search of his father’s participants but are in the warrantless transaction, Accordingly, and search seizure warrant. evidence entry, search and cir- given by legal them under these in that search was information discovered and not have the properly does in cumstances admissible evidence that was by required the rule. Other- characteristic troduced into evidence at the trial. See wise, would have to do to all the officers (2 Agapito, 620 F.2d 324 United States enter, seize a house would be to and search Cir.1980), denied, cert. proceed a warrant and then apply first (1980), 66 L.Ed.2d where offi by making amendment to violate the fourth cers seized a suitcase without a warrant entry. They say could then a warrantless open but did not it until warrant was illegal act was excused because that their obtained, whereupon opened it was in- they had furnished kilogram searched. A of cocaine found for the I applying formation in warrant. inside held to be admissible evidence. rule in- that the was ever cannot believe Christophe, Also see United States v. conduct authorize such unlawful tended to (2 Cir.1972) F.2d 865 cert. police. (1973), lot that there is a of confusion realize which is much like our case. There the regard to the uncertainty with law defendant arrested and later the offi independent source rule. governing the cers entered his house without a warrant argument certainly room for There is by walking through it it. and secured meaning opinion as to its differences of Three hours later valid warrant was ob Supreme hoped It is application. tained and thereafter a full scale search of guidelines establish as to its use Court will quantity the house was made and a Segura, it considers United States when heroin The heroin was discovered. (2 Cir.1981), granted, 663 F.2d 411 held to be admissible evidence. court . 103 S.Ct also held that the officers “were entitled to already has in which the Court heard cursory prem conduct a examination of the argument. anyone present ises see else was who us, destroy As to the issue before I believe we safety threaten their evi agreed are all officers entered the dence.” partially Palumbo house and seized and Accordingly, although I would hold that warrant, searched it without a and that police entry and there was a warrantless there were no circumstances nor occupancy subsequent of Palumbo’s house exceptions to the fourth amendment that to his the fourth arrest that violated

justified their actions. These acts amendment, consequences it had no and did clearly officers were a violation of the not taint items later discovered and seized However, on ini- fourth amendment. their warrant, under and that the a valid search search, tial and did find correctly district court the motion to denied anything offered or that was introduced Judge suppress join the items. I Aldrich in After into evidence at Palumbo’s trial. affirming judgment of the district search, they they preliminary had made the court. left outside until the the house and waited arrived, whereupon they search warrant BOWNES, Judge (dissenting). Circuit complete made a search of the house and I my differ with brothers three basic premises and the items that found were one, respects: compel I think the facts suppress. ques- listed in the motion to finding entry that a warrantless and sei- original tion ille- before us is whether place zure of the Palumbo residence took gal entry, the house search and seizure of arrived; two, long that before warrant spilled the later search over and tainted justi- there were no circumstances warrant, under the search as the as well seizure; and, three, fying my opinion, items found in that search. independent discovery rule does this did not occur. The later search was apply. made in accordance and under a valid not with my exposition I start the facts with p.m., Sometime after 7:00 Mrs. Palumbo police the arrival of the at the telephoned friend, Palumbo Melchionna, Carol Ralph already home after Palumbo was asked her to drive over and take her chil- custody. Sometime between 6:80 and 7:00 dren evening. for the As Mrs. Palumbo p.m., police at least five officers went to went down into the basement where the the Palumbo home. Mrs. Palumbo was watching television, children were an offi- drinking seated at her kitchen table coffee cer followed her. She also went into the father-in-law, Ralph Palumbo, Sr., with her garage, accompanied officer, by an get visiting family who was from out-of- dog. The officers had told her state, when she ap- observed two men dog attempted to bite one of them they proach the door. When Mrs. Palumbo would shoot it. Mrs. Palumbo then tied the door, opened the the two officers showed dog away to a tree from the house. badges, their entered the house without By the time arrived, Mrs. Melchionna consent, they and informed her proba- had Mrs. given Palumbo had been permission ble cause to search the house and were police to leave. She started towards awaiting the arrival of a search warrant. her car but was told that she could not use officers, Three or more plain also in it. The locked the car and took the clothes, then entered the Palumbo resi- keys. She was told that if she touched the dence. Mrs. Palumbo demanded to see a giving officer directions she would be ar- warrant. After the officers said one was rested got for assault. She then into Mrs. coming, Mrs. Palumbo ordered them out of Melchionna’s car and asked that the doors her home. To that demand the officers be locked. Her children were already in responded, “We’re going anywhere.” point car. At that the officers blocked The officers then informed Mrs. Palumbo Mrs. Melchionna’s exit with a cruiser “securing premises” banged on the windows directing Mrs. anticipation of the arrival of the warrant. out, get Palumbo to warning her that she Mrs. Palumbo asked if she and her two could not pocketbook leave until her was teenage children could leave and she was By time, searched. this the children were told that her children could leave but that crying nearly hysterical. Mrs. Palum- note, here, she could not. if Mrs. got bo therefore out of the car. Mrs. Mel- Palumbo had been allowed to leave with chionna drove off with the children while her children the house could have been pocketbook Mrs. Palumbo’s kept was searched. under surveillance from the outside Nothing it, danger no seized from and Mrs. Pa- evidence in permitted being lumbo was destroyed. house to leave. She walked telephoned into town where she Mrs. Mel- officers fanned out to various join chionna to take her to her children. parts house, outside the field of departure Mrs. Palumbo’s marked the last Palumbo, vision of Mrs. Palumbo and Mr. family presence member’s on the Palumbo preliminary, Sr. Two warrantless searches premises until p.m. after 11:00 were then conducted. One officer searched the kitchen hutch and another officer When residence, Mrs. Palumbo her left Palumbo, searched Mr. Sr.’s suitcase which lights Conflicting were on. testimony upstairs. presented regarding presence law enforcement officers in the Palumbo again

Mrs. Palumbo ordered the officers residence at the departed. time she out When They of her house. did not leave. It is Mrs. Palumbo returned at not clear 11:00 or 11:30 changed when the officers their p.m., outside, garage, the allowing minds about not and Mrs. kitchen Palumbo to premises lights dog leave the but she were on. The by sitting was told the inside point garage. officers at some the occupants The officers were outside the house, the house could leave if sitting consented to a in the breezeway, between search of items taken with them. garage the and main house.

664 fundamental, repeatedly enunciat It is a enforce- testified that the law officer One law,” Amendment of Fourth “principle ed the house when personnel vacated ment York, 573, 586,100 New Payton v. 445 U.S. left, in phone Mrs. Palumbo (1980), 1371, 1380, 63 L.Ed.2d 639 S.Ct. An- in her garage used absence. per searches and seizures are warrantless used the that he trooper testified other States, unreasonable, Katz v. United se Dis- to talk to Assistant telephone kitchen 357, 507, 514, 347, 88 S.Ct. 19 389 U.S. Libby, although the time of Attorney trict (1967) (footnotes omitted), un L.Ed.2d 576 given. was not this call specifi they fall within one “few less firm retained of the law An associate excep well-delineated cally established and he ar- testified that when Palumbos Arizona, 385, v. tions,” Mincey 437 U.S. shortly af- residence at the Palumbo rived 2408, 2412, 390, L.Ed.2d 290 57 98 S.Ct. partner of the firm was p.m., 11:00 ter In the (1978), requirement. to the warrant law enforcement house with several exigent circumstanc of consent or absence requested to The officers were officers. es, required to authorize a a warrant house, they did so. When and vacate the Steagald v. police entry into a home. she was forbidden States, 204, 211-12, Palumbo returned Mrs. 451 U.S. United 1647-48, (1981); had 1642, her home until the search to reenter 68 L.Ed.2d 38 S.Ct. York, 586, 100 v. New Payton p.m., 11:45 Cor- 445 U.S. at begun. approximately At Edwards, 1380; United At S.Ct. with the warrant. poral Holmes arrived (1st Cir.1979); United 458, 468 602 F.2d and enforcement officers least fifteen law Picariello, 568 F.2d (1st v. States present at that were seven vehicles Cir.1978). copy No of the warrant had been time. made, attorneys were allowed alone, probable cause That officers have circumstances, only it held it. read while indicia of without affidavit, of a attorneys were unable to scan not authorize a warrantless does States, residence, Taylor v. United however, at the it had been sealed because 5-6, 466, 467, 76 L.Ed. 951 52 S.Ct. Corporal lawyers request of Holmes. States, Agnello v. United (1932); 269 U.S. did not consent to the stated Mrs. Palumbo 4, 6, (1925), 20, 33, nor 70 L.Ed. objection. and Holmes noted the search illegal entry may valid searches or after an began, attorneys After the search v. Jones occur absent a warrant. seizures permitted to enter Mrs. Palumbo States, 497-98, United 357 U.S. to the kitchen. house but were confined 1253, 1256-57, S.Ct. facts, opinion, my establish that These “conducted without Searches or seizures p.m. po- starting approximately 7:00 have held unlawful ‘notwith warrants been complete possession lice control and took showing standing unquestionably facts premises. The officers refus- the Palumbo States, Agnello v. United cause,’ so ed to leave home when asked do 4, 6, 145], S.Ct. 70 L.Ed. 269 U.S. 33 [46 Palumbo. The decided who Mrs. de requires ‘that the for the Constitution premises They could and when.- leave impartial judgment judicial of a liberate, Mrs. to leave refused to allow Palumbo the citi interposed between officer ... car, taking keys. locking it and her police____’ Wong v. Sun zen and the left, the used After Mrs. Palumbo officers States, 481-482 [83 re- telephone freely some of them Katz 407, 413-414, 9 L.Ed.2d 441].” ex- mained inside the home. The dominion States, 357, 88 S.Ct. v. United 389 U.S. at from 7:00 the Palumbo home ercised over ‘again this Court has at 514. “Over p.m. p.m. at 11:45 until the warrant arrived emphasized that the mandate house, con- a seizure of the its constituted requires Amendment adherence [Fourth] tents, United States processes,” and Mrs. Palumbo’s automobile. judicial Jef Berkowitz, fers, United States (1951), and sei (1st Cir.1970). L.Ed. 59 and that searches

665 pro judicial consent, zures “conducted outside the Since there was no question prior approval by judge cess, exigent circumstances, is whether specifi- without a or cally portent Katz, 357, evidence, of destruction of magistrate,” 389 at 88 U.S. S.Ct. justified entry the warrantless of the Pa- added), (emphasis at 514 must fall within Supreme lumbo home. The Court has rec- recognized exceptions. one of the “[T]he ognized destruction, that “imminent remov- general requirement that a search warrant al, or concealment of the evidence to be dispensed lightly obtained is not to be be type seized” is one exigent of circumstanc- with, seeking and the is on those burden es justify which would a warrantless exemption requirement] [an] [from entry and search. Jeffers, United States v. it.” Chimel v. Califor the need for show 52, 95; 342 at see also U.S. 72 S.Ct. at nia, 759, 762, 2034, 752, 395 U.S. 89 S.Ct. States, Johnson v. United 15, 333 U.S. at (citations (1969) 23 L.Ed.2d 685 68 at S.Ct. 369. omitted). Louisiana, Vale v. In 30, 399 U.S. 90 of Johnson v. United authority On the 1969, (1970), S.Ct. 26 L.Ed.2d 409 the Court States, 10, 367, 333 68 92 U.S. S.Ct. L.Ed. rejected ruling by Supreme Louisiana (1948), entry 436 conclude that the Court that a warrantless search was inde occupancy of the Palumbo home consti- pendently supportable because it involved encompassed by a search and seizure tuted easily removed, narcotics which are hidden Johnson, the fourth amendment. destroyed. or The Court then went on to suspected presence officers of illicit specify the justifying situations a warrant- drugs in a hotel room but were unaware of entry consent; less into a home: an emer knocked, occupant’s identity. They gency; pursuit hot fleeing felon; of a opened, door was entered the goods either in process of destruction room. The Court held that the mark- or about to jurisdic from the removed beginning illegal ed the “An an search. Id. at 35, tion. 90 S.Ct. at This is gaining private living officer access to stringent and, applied test literally, no quarters under color of his office must entry could be made police pos unless then have some valid in law for the basis knowledge sessed actual that evidence was Id. at 17, (em- intrusion.” 68 at 370 S.Ct. being destroyed. know, As far as I phasis added). principle This was recon- circuit court has followed this test literall York, in Payton v. New recently firmed y.1 While the need not wait until 590, 1382, process 445 U.S. at 100 progress S.Ct. destruction is in States, perfectly gauge Steagald 212, United 451 moment the destruc U.S. at begin, tion 1647, will observed, 101 belief that evidence is S.Ct. when the Court likely destroyed to be must be based on apply equally terms that to seizures “[I]n supposition more than a mere or one of a property persons, seizures of range hypothetical possibilities. This Fourth Amendment has drawn a firm line circuit has never had occasion decide at the entrance exigent to a house. Absent what factors are necessary underpin circumstances, may the threshold finding that type exigency this existed. crossed Accordingly, without a warrant.” police entry and seizure of the Palumbo Circuit, however, The Second in at least justification home find its must either two recent precise cases has faced this consent or question. circumstances. applied It has formulated and Edwards, e.g., 1. See Griffin, United States v. (6th United States v. 602 F.2d 959, 502 F.2d 961 denied, (1st Cir.1979); Cir.), Agapito, United States v. cert. 458, 469 95 S.Ct. 42 1050, 626, denied, Cir.), (2d Kunkler, cert. (1974); 324, 620 F.2d 335-36 United States v. 449 L.Ed.2d 645 (1980); (9th Cir.1982); 107, U.S. 66 L.Ed.2d 40 679 F.2d 187, 191-92 Rubin, Cuaron, (3d United States v. (10th 474 F.2d 700 F.2d Cir. denied, Cir.1973), McEachin, 1983); cert. United States v. 670 F.2d (1973); United States v. Kel (D.C.Cir.1981). L.Ed.2d See also 2 W. 1139, 1144-45 ly, (5th Cir.) LaFave, Search and § 6.5 at 436-39 Seizure (1982); party some third that her husband appropriate balance or from an which strikes test scrutiny. public interests at competing had been arrested withstand between to stake, right of individuals be occurred namely, the of Palumbo and Walker arrests the interest of homes and secure their residence in five miles from the Palumbo disappearance public preventing of a Ramada Inn in a parking the rear lot criminal necessary to convict of evidence 20,000. Although there were city of over States, Segura In offenders. arrest, to the there was several witnesses Cir.1981), reap (2d the court 663 F.2d 411 no for the officers to believe reason in United it first formulated plied the test any of the witnesses knew either Palumbo (2d Cir. 620 F.2d 324 Agapito, Mrs. Palumbo or his wife and would inform denied, 1980), 101 S.Ct. cert. that her had been arrested.2 husband (1980). In order for objec- summary, In the officers had no prevent to a residence to enter officers tive facts on which to base arresting “the offi of evidence destruction home their belief that Mrs. Palumbo was at (1) a reasonable belief that must have cers destroy any in the and. evidence inside, (2) a reason persons are third test had house. The “reasonable belief” persons third are aware belief that the able nor, course, met, did the facts not been premises so that outside the of the arrest stringent requirements of meet the more evidence, escape or they might destroy Louisiana, 399 U.S. at Vale v. or the safety of the officers jeopardize the at 1971. States, 663 public.” Segura v. United (quoting Agapito). F.2d at 414 that, Additionally, it must be noted al- though Agent DEA testified he leading to the Graffam of the facts A review pri- home telephonic to the Palumbo knew that warrants could be decision “secure” Rules, obtaining a warrant shows or to under the Federal see Fed. obtained a reasonable officers lacked the basis for 41(c)(2), no consideration was R.Crim.P. Palumbo was at the home belief that Mrs. given obtaining to such a warrant. This of her husband’s and that she was aware precisely type of situation for was of evidence arrest so that the destruction telephone was which a warrant obtained testimony Trooper imminent. The designed: unequivocal: at the time it Holmes was are not Federal law enforcement officers home, to secure the was decided infrequently situations confronted with there, did not know that Mrs. Palumbo was not suffi- in which the circumstances are nor there reason believe “exigent” the serious ciently justify her husband had been arrested. she knew step conducting search warrantless attempt no whatsoev- The record discloses premises, yet exists private there presence of Mrs. Palum- er to ascertain the evi- significant possibility that critical or the use of bo or others surveillance dence lost in the time it would would be police investigatory meth- legitimate other by tradi- take to obtain a search warrant deciding home. prior ods to enter the means. tional shortage certainly of avail- There 41(c)(2)advisory Fed.R.Crim.P. committee least, police personnel. At the a tele- able note phone could have been made to deter- call The officers anyone mine if was home. despite findings by realize that more, assumed, simply that Mrs. without entries into and Second Circuit that the was at home. Palumbo Agapito Segura resi- control over the unlawful, suppress it did not dences were Agent Nor does Graffam’s scenario from the homes. intuitively either the evidence seized Mrs. Palumbo would learn brother"; this, knew, Rubin, yelled my people Compare he "Call United States v. circumstances, great (3d Cir.), raised likeli other (1973) (arrestee apprehended home would hood arrestee’s confederates at his evidence). destroy neighborhood presence and in be alerted to arrest and of his home Agapito, v. F.2d the United States 620 at Fourth Amendment reflects [b]ut the view of those agents who wrote “[although the the Bill of it reasoned Rights privacy person’s of a home in 1701 seized the suitcase Room which property may totally be sacri- cocaine, they open did not it contained the ficed in the name of maximum simplicity the warrant had been obtained. until after in enforcement of the criminal law. cocaine, therefore, kilogram The one of Arizona, Mincey v. 393, 437 U.S. at if the warrant was valid.” 98 was admissible (1978). at 2414 Failure to suppress S.Ct. illegal I respect, With due do not think an the evidence obtained from the Palumbo by cured a warrant seizure can be subse exploitation home illegal results of con- States, obtained. Katz United quently duct and eviscerates the fourth amend- 356, 389 U.S. at 88 S.Ct. at 514. There is ment. jurispru in fourth amendment no basis My brothers seek to buttress their deci- approach. dence for this back door by falling independent sion back on the I believe the Ninth resolution of Circuit’s respect, source rule. due With think question comports closely this more with misapply misconstrue and this rule. The spirit purpose amend fourth rule has its roots in Silverthorne Lumber consistently ment. The has Ninth Circuit States, Company, Inc. v. United 251 U.S. ruled draw no Fourth Amendment “[w]e 385, 182, (1920). 40 64 L.Ed. S.Ct. 319 That distinction between ‘searches’ and ‘sei illegal case involved an examination and zures’ of residences. Seizures of resi books, copying papers, and docu- dences, searches, require like a warrant ments of defendant. on the Based infor- present.” unless circumstances are obtained, mation thus a new indictment Lomas, 886, United States v. 706 893 F.2d subpoenas drawn issued for the Kunkler, (9th Cir.1983); United States v. original documents. Justice Holmes stat- (9th Cir.1982).3 n. 1 ed: Supreme The recognized provision Court has never of a forbidding essence “securing acquisition premises anticipation way a of evidence in a certain is warrant,” merely acquired that not exception a search to the evidence so war shall not be requirement used before the Court but rant of the fourth amendment. that it shall not be used all. Of course Obviously, exception such an cannot coex this does not mean that the facts thus precedents ist established obtained become sacred and inaccessible. almost six decades of fourth amendment If knowledge gained of them is an from Agnel jurisprudence which have followed independent they may proved source lo. Such exception necessarily an others, knowledge like require swallow rule. The warrant gained by wrong the Government’s own protects privacy ment of the home way proposed. cannot be used it in the “interpospng] magistrate between the cit Id. obviously 183. objective izen and the an 40 S.Ct. at This ... so that party if a means that third had told the might weigh mind need to invade that material, government subpoena about privacy in order to enforce the law.” Mc lawfully could have been States, issued them. Donald v. United (1948). L.Ed. ease, indepen- In the context of this an Undoubtedly, it would easier and more neighbor dent source have been efficacious for to enter and “secure” house, the Palumbos who had visited the magistrate’s pending material, homes determina implicating seen the and informed issue, police. cases, tion of whether a warrant should I have found no how- (1974) appears preceded Sixth Circuit to have 42 L.Ed.2d 645 ruling Korman, (6th Ninth Circuit in so on this issue but its with United States 614 F.2d 541 holding initial left in a more Cir.) (divided denied, some doubt after panel), cert. Compare Griffin, recent case. United States v. (6th Cir.1974), 502 F.2d 959 the Palumbo residence. After a ho- ever, suggesting an within arrival, squad’s police began mocide its probable cause could be the officers’ Mincey’s investigation of residence and on the implicating evidence was belief that gathered days. over four No evidence war- premises. majori- rant was ever Under the obtained. I think that do Nor ty construction (1st Cir.1980) ap- Bienvenue, F.2d 910 rules, discovery none of source/inevitable There, police, as a found that the plies. we found as a result of the war- the evidence routine, investigative would inev- matter Mincey’s search seizure of rantless regard- the evidence itably have discovered apartment suppressed should have been be- Here, illegal search. the the initial less of knowledge the officers’ cause crimes illegally part as of the seized evidence was committed, had been made them their own There was no seizure of house. initial Further, given independent sources. obtaining the same evidence possibility of police dominion after the over residence source, as Bien- in another elsewhere from committed, crimes had been the evidence venue. inevitably would have been discovered. Moreover, in Bienvenue the Government Court, however, Supreme unanimously The specifically advanced suppressed, the evidence and declined discovery and the inevitable source rule species probable exception find a of a cause Here, us. theory below and before Id. at requirement. to the warrant depended solely exigent on cir- Government examining proferred S.Ct. at 2412. justification for its seizure cumstances as arguments justifying a murder-scene ex- majority’s house. The determination of the ception requirement, to the warrant exigent were “rath- circumstances thing say “It is one Court said: one them to invoke a rule thin” has forced er legally police custody taken into has who is argued by parties. I or not briefed right privacy person. a lessened of in his point out also that if the argue quite It is another to that he also has applied, rule is to be the critical right privacy a lessened in his entire it was shown that issue whether (cita- house.” Id. 98 S.Ct. at 2413 indepen- found evidence would have been omitted). arguments tions Other were sim- dently one in the first instance for the is ilarly rejected. I it do believe that Finucan, States court. district Mincey difference that makes (1st Cir.1983). warrant was never obtained. rule is “conducted out- that searches and seizures Arizona, Mincey v. prior ap- process, judicial side the without (1978), presents per se judge magistrate, proval of a are stronger application case for the much under the Fourth Amend- unreasonable majority’s independent source cum in- only subject to few ... well-delin- applica- discovery rule were such evitable ment — Id. exceptions.” eated 98 S.Ct. at tion the realm of fourth amendment within States) (first Katz v. United (quoting police jurisprudence. There were valid- added). emphasis apartment during ly the defendant’s inside drug an authorized bust. Gunfire came my put question is not as brothers it the direction of the defendant who from of whether bad conduct should be allowed room, wounding fatally one another spill consequences and affect over only This homicide was one officer. truly independent good Majority conduct. crimes committed in the Rather, of several serious Opinion question at 32. police. The informa- presence actual entry, search and whether warrantless forming probable to search forgiven tion cause seizure of a home is to be because cause, Mincey’s apartment probable for evidence of these had but with was, therefore, prob- beyond far acted without hav- crimes circumstances pos- ing My have able cause belief the officers the warrant hand. brothers exception existed out another to the war- sessed here that relevant evidence carved requirement rant of the fourth amendment: application cause exists and the PERRON, Petitioner, Donald B.

process begun, for a warrant has a war- Appellant, entry, rantless search and seizure become retroactively valid when the warrant ar- PERRIN, Jr., Warden, Everett agree. I I. may help rives. cannot This con- New Hampshire Prison, criminals, vict but it violates the fourth State Respondent, Appellee. respectfully amendment. dissent. 83-1795.

No. OPINION FOR REHEARING United States Court Appeals,

PER CURIAM. First Circuit. herein, Following opinion reported our Argued March 1984. (2-1), 730 F.2d 28 defendant moved for rehearing. We action Aug. reserved on the mo Decided pending Supreme opinion tion Court’s

on the somewhat similar case of Segura v. States, then under advisement. —down, U.S. —,

Segura has now come

Segura panel makes clear that the

decision was correct. An unauthorized1 premises,

seizure of which includes the con

tents, unknown, known and does not re

quire the exclusion from evidence of items

subsequently discovered if their discovery independent source, to a traceable lawful by, of,

not contributed to or the fruit

improper conduct. The fact that the same

officers were involved does not mean it independent; independent

was not conduct,

means of unlawful individuals.

The Segura court did not consider the

consequences itself, by if the seizure pre-

venting property loss or destruction of the situ,

by freezing init contribute to discovery, except require more than

speculation that this was the fact. That

question presented is not in the case at bar. rehearing

The Petition for is denied. day, petition

On the same for rehear-

ing en banc is on the basis of the opinion denying

Per rehearing by Curiam panel. Justice, "opinion 1. The being sought, Chief who authored the although and a warrant was there Court,” O’Connor, joined by Justice presaging were no circumstances loss or only, regarding Segura property. seizure as lawful destruction of the This difference of existed, present because cause for a consequences. warrant view is of no

Case Details

Case Name: United States v. Ralph Joseph Palumbo

Court Name: Court of Appeals for the First Circuit

Date Published: Sep 14, 1984

Citation: 742 F.2d 656

Docket Number: 82-1102

Court Abbreviation: 1st Cir.