U.S.A. v. Gori

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1568
• Citation: 230 F.3d 44
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellant, v. JULIO GORI, Defendant, SORIN PICHARDO and VICTOR ROSARIO, Defendants-Appellees. (L),99-1569
• Court: U.S. Court of Appeals — Second Circuit

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230 F.3d 44 (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellant,
v.
JULIO GORI, Defendant, SORIN PICHARDO and VICTOR ROSARIO, Defendants-Appellees. Docket No. 99-1568(L),99-1569
August Term, 1999 UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT Argued: February 22, 2000
Decided: October 18, 2000

The United States appeals from the order of the United States District Court for the Southern District of New York (Patterson, J.) granting the defendants-appellees' motions to suppress evidence and from an order denying the government's motion for reconsideration.

Reversed.

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Copyrighted Material Omitted

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Ira A. Feinberg, Assistant United States Attorneys, Lewis J. Liman, Special Assistant United States Attorney, on the brief), for Appellant. MARK F. MENDELSOHN, Assistant United States Attorney, Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Jennifer L. Borum,

DAVID J. GOLDSTEIN, Bronx, N.Y. (Elliot Fuld, Christopher Booth, Michael J. Nedick, Goldstein, Weinstein & Fuld, on the brief), for Defendants-Appellees.

Before: JACOBS, SOTOMAYOR and MICHEL,^* Circuit Judges.

Judge Sotomayor dissents in a separate opinion.

JACOBS, Circuit Judge:

The United States appeals from orders of the United States District Court for the Southern District of New York (Patterson, J.) granting defendants-appellees' motions to suppress evidence, and denying the government's motion for reconsideration. In a nutshell, police officers who were on surveillance in the hallway of an apartment building, watching the door of a narcotics stash house, were surprised by the arrival of a woman delivering an order of hot food to the stash house. They allowed her to follow through on her delivery, and through the opened door directed that the occupants step outside and submit to a brief investigatory detention. The district court held that the police thus made a constructive entry into a private residence in violation of the Fourth Amendment's warrant requirement.

We reverse, holding (1) that occupants of a known stash house, having voluntarily exposed themselves to public view by answering the door to receive their food delivery, had no reasonable expectation of privacy against being seen by persons standing in a public hallway; and (2) that once they were seen, in the absence of unreasonable police conduct, the occupants' temporary seizure in the course of a limited investigation does not constitute a violation of the Fourth Amendment.

BACKGROUND

The district court opinions in this case are reported at United States v. Gori, No. 98 CR. 1163(RPP), 1999 WL 322651 (S.D.N.Y. May 20, 1999) (granting defendants-appellees motion to suppress) ("Gori I"); and United States v. Gori, No. 98 CR. 1163(RPP), 1999 WL 816172 (S.D.N.Y. Oct. 13, 1999) (denying government's motion for reconsideration) ("Gori II"). We assume familiarity with the facts as set out at length by the district court, and recount in this opinion only such facts as bear upon our resolution of the issues presented on appeal.

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A. Facts

Pedro Mora was arrested in possession of a kilogram of cocaine on October 12, 1998, and immediately cooperated with the police. Mora paged his drug source, defendant Julio Gori, who called back. As police officers listened in, Mora told Gori that he had two customers and wanted to pick up two kilos of cocaine. Gori agreed and invited Mora to come by later that afternoon.

Accompanied by two New York City police officers, Mora went to the apartment building Mora identified as the location where Gori had delivered kilogram quantities of cocaine to Mora in the past. From an unmarked car, Det. Amando Rodriguez and Sgt. Diane Contreras watched as two men entered the building. Mora identified one as Gori; the other was later identified as defendant-appellee Sorin Pichardo. Det. Rodriguez left the car, followed both men, and saw them enter Apartment 1M.

Mora telephoned Gori fifteen minutes later to say that he was waiting in front of the building. Gori then came out of the building carrying a small black shopping bag and approached what he thought was Mora's parked vehicle. Coming up from behind Gori, Det. Rodriguez displayed his shield, and said "Police, stop!" Gori froze and dropped the bag, and Sgt. Contreras moved in to place Gori under arrest. Det. Rodriguez discovered two yellow packages in the bag, each of which contained a kilo of cocaine. Gori said in Spanish that someone in the apartment building had given him the bag.

Det. Rodriguez, Sgt. Contreras and another officer set up surveillance in the lobby of the apartment building pending further instructions from their lieutenant, who was not there yet. Twenty to thirty minutes passed; no one entered or left Apartment 1M; and the lieutenant did not arrive. At that point, a woman entered the apartment lobby with a delivery order of hot food for Apartment 1M. According to Det. Rodriguez's testimony, he worried (1) that if he prevented the delivery, the hungry occupants might investigate the delay and be alerted to the officers' presence, and (2) that if he let the delivery be made, the delivery woman might betray their presence, inadvertently or otherwise. Det. Rodriguez and Sgt. Contreras decided to accompany the delivery woman to Apartment 1M.

The delivery woman stood in front of the door to Apartment 1M, with Det. Rodriguez to her left, and Sgt. Contreras just off to the right. Both officers had their guns drawn but at their sides and pointed to the floor. The delivery woman knocked on the door, and the door was opened wide. Both officers immediately displayed their shields, and Det. Rodriguez said, "Everyone step out into the hallway!" Det. Rodriguez testified that from his spot in the hallway, he could see five people through the open door (two men, two women and a child), including defendant-appellee Victor Rosario. A moment later, Pichardo (who had earlier been observed arriving at the apartment building with Gori) emerged from a bedroom in the rear of the apartment. All six occupants stepped into the hallway, where they were told to stand against the wall. Sgt. Contreras testified that at this point the occupants were not free to leave.

The officers re-holstered their weapons and brought a handcuffed Gori into the hallway area. Det. Rodriguez asked the occupants who owned Apartment 1M. Rosario identified himself as the owner of the apartment, at which point Det. Rodriguez asked Rosario if he knew "the fat guy," motioning at Gori. Rosario looked at Gori, nodded and hesitated. Then, either Rosario or Det. Rodriguez (it is unclear on the present record) asked to speak in private. Rosario moved back into the apartment and Det. Rodriguez and Sgt. Contreras followed. Rosario then told both officers that "[t]he only thing I know" about Gori "is that he gave me a thousand dollars to hold a bag for him."

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Rosario then consented to a search of the apartment, and Det. Rodriguez prepared a handwritten consent to search form, which Rosario signed.¹ Det. Rodriguez asked Rosario about the bag he was holding for Gori, and Rosario took Det. Rodriguez and Sgt. Contreras to the bedroom where he opened an armoire and pulled out a bag containing five kilograms of cocaine. The officers left the bag in the armoire and returned to the hallway to maintain control of the other occupants.

A half-hour later, New York Police Department ("NYPD") Lieutenant Ciaran Timoney arrived bearing a Spanish-language consent-to-search form of the kind used by the Drug Enforcement Agency ("DEA"). Det. Rodriguez handed the form to Rosario, advised him to read it, and explained it to him. Rosario signed the form and the officers conducted a full search of the apartment, beginning with the armoire. Seized from the apartment were five kilograms of cocaine as well as dilutants, documents, drug paraphernalia and $15,000 in cash. The officers placed Rosario and Pichardo under arrest, and transported them (and Gori) to the DEA's offices, where all three defendants were read Miranda warnings. Pichardo signed a form waiving his rights and stated that he knew that the other defendants were drug dealers but claimed that he did not know that there had been drugs in the apartment at that time.

B. Motion to Suppress

In indictments returned on October 22, 1998, Gori, Rosario and Pichardo were charged with conspiracy to distribute cocaine, in violation of Title 21, United States Code, Section 846. Pre-trial, Rosario and Pichardo moved to suppress the physical evidence seized from Apartment 1M and the statements that they made, on the grounds (1) that the police entered the apartment in violation of the Fourth Amendment, before they had obtained consent and in the absence of exigent circumstances; (2) that Rosario's consent was invalid because the officers had coerced him into signing the written consent form; and (3) that their statements were the fruits of unlawful arrests made before Miranda rights were read.

C. The District Court's Decision

The district court's opinion of May 20, 1999 granted the suppression motions. The court first found that the officers had "reasonable suspicion entitling them to carry out an investigation of . . . Apartment 1M" since

Rodriguez had seen Gori entering Apartment 1M . . . and exiting the building thereafter in response to Mora's telephone call, carrying a bag that turned out to be cocaine. A logical conclusion was that Gori could have a stash and that it could be in Apartment 1M.

Gori I, 1999 WL 322651, at 6 (internal quotation marks and citations omitted). The court credited the officers' testimony and ruled that "specific, articulable facts existed to support a reasonable suspicion that evidence of criminal activity might exist in Apartment 1M." Id. The court further found that Rosario consented to the officers' entry, and then consented to their search of the apartment, and that both...