United States v. Paroutian

• Decision Date: 09 February 1962
• Docket Number: Docket 27038.,No. 96,96
• Citation: 299 F.2d 486
• Parties: UNITED STATES of America, Appellee, v. Antranik PAROUTIAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

299 F.2d 486 (1962)

UNITED STATES of America, Appellee, v. Antranik PAROUTIAN, Defendant-Appellant.

No. 96, Docket 27038.

United States Court of Appeals Second Circuit.

Argued October 13, 1961.

Decided February 9, 1962.

C. Joseph Hallinan, Jr., New York City, for defendant-appellant.

Jerome C. Ditore, Asst. U. S. Atty., E.D.N.Y., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., Brooklyn, N. Y., on the brief), for appellee.

Before CLARK, WATERMAN, and MOORE, Circuit Judges.

CLARK, Circuit Judge.

Antranik Paroutian appeals from his conviction of knowingly and unlawfully receiving and concealing a narcotic drug, heroin hydrochloride, and of conspiring with another to import this drug into the United States, to receive, conceal, and sell it, and to facilitate its transportation, concealment, and sale — all in violation of 21 U.S.C. § 174. At a preliminary hearing Paroutian, who had been extradited from Lebanon to answer the indictment, moved to suppress certain evidence on the ground that it was obtained through a lead uncovered during an unlawful search of his apartment, and was thus a "fruit of the poisonous tree." The motion was denied, and the evidence was admitted. We are here called upon to decide whether such action was prejudicial error; whether this evidence was so "tainted" that its admission violates the exclusionary policy of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.

On April 5, 1958, M. Sicot, Secretary General of the International Criminal Police Organization (Interpol), sent a letter to the Commissioner of Narcotics, Treasury Department, in Washington, D. C., requesting information as to Gabriel Graziani, a French subject who had been arrested in Geneva for cashing stolen Canadian securities and who was suspected of engaging in the drug traffic. This letter included the information that Graziani owned an apartment in New York, at 118-09 83d Avenue, Kew Gardens. In response to this request Agent Martin F. Pera of the Bureau of Narcotics, United States Treasury Department, and members of the New York police department entered Graziani's apartment on April 18, 1958. They had no search warrant. They were accompanied by Martin Spolan, agent for the owner of the apartment building. In the course of this search Spolan noticed that one of the closets in the apartment had a new cedar lining, and indicated that it must have been installed by the occupants of the apartment. When this was brought to the officers' attention they tapped the cedar lining and then took a screwdriver and hammer and unsuccessfully tried to remove the lining from the wall. On April 20, Agent Pera returned to the apartment, again without a warrant. This time he was accompanied by one Feiler, a friend of both Graziani and Paroutian, who indicated that Paroutian shared the apartment with Graziani. In the course of this visit Agent Pera found a photo of appellant and several other pictures, which he took.

On May 19, 1958, the owner of the apartment house secured a court order dispossessing Graziani from the apartment for nonpayment of rent. On June 19, 1958, agents of the Bureau of Narcotics entered the apartment, now unoccupied, with permission of the apartment house owner. On this occasion they made a thorough search of the cedar closet and discovered that it contained a secret compartment, in which were cached a bag containing heroin hydrochloride and an unsigned letter. At trial both the drug and the letter, which was identified by a witness as having been written by Paroutian, were introduced. They constitute the core of the government's case, so that if their admission was erroneous the judgment of conviction must be reversed.

The searches on April 18 and 20, 1958, were unlawful. It is unclear from the evidence whether Paroutian had paid the rent for the month of April. There was no indication, however, on April 18 and 20 that he did not intend to return to the apartment. Either because the rent had been paid or because he felt it would be forthcoming, the landlord made no efforts to evict Paroutian and Graziani until several weeks later. Thus Paroutian was legitimately on the premises and is entitled to invoke the right of privacy guaranteed by the Fourth Amendment. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Steeber v. United States, 10 Cir., 198 F. 2d 615, 33 A.L.R.2d 1425. It is admitted that no warrant was procured before the searches. Such a search can be justified only as incident to a lawful arrest or under exceptional circumstances which make it impractical to secure a warrant through orderly procedure. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. Hence no justification is shown for this search, as indeed the judge below held.

At least several days must have elapsed between receipt of the Interpol letter and the search. There is no showing of any reason why the few hours necessary to secure a warrant could not be spared; the apartment, with its cache of heroin, went unmolested for two months thereafter. Here the only permissible inference is that the agents were careless or feared they had not amassed sufficient evidence to support issuance of a warrant. These facts demonstrate the recurrent need to suppress logically relevant evidence if acquired unlawfully, even where it may mean that a criminal will go free. For in these circumstances the agents willfully or negligently ignored judicial admonitions, constantly reiterated, that each one of us, suspected criminal or no, is entitled to security in our persons, houses, papers, and effects until an impartial magistrate determines that the enforcement officers have probable cause to believe the law has been violated.

The question presented, therefore, is whether the evidence actually seized in the third search, which, occurring after Paroutian was out of possession of the premises and lawful under Jones v. United States, supra, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, is "tainted" by the first two illegal searches.¹ The purpose of the rule against admission of illegally seized evidence is the protection of the right to privacy; by quarantining evidence gathered in this manner it is hoped that the zeal of enforcement agencies for such methods of procuring evidence will be curbed. "There is but one alternative to the rule of exclusion. That is no sanction at all." Murphy, J., dissenting in Wolf v. People of State of Colorado, 338 U.S. 25, 41, 69 S.Ct. 1359, 93 L.Ed. 1782. Consistent with this broad purpose the rule extends beyond evidence directly seized in an unlawful search, to prescribe use of all evidence obtained as an indirect result of such illegal activity — the "fruit of the poisonous tree." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L. Ed. 319. See Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; United States v. Coplon, 2 Cir., 185 F.2d 629, 28 A.L.R.2d 1041, certiorari denied 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688.

An unlawful search taints all evidence obtained at the search or through leads uncovered by the search. This rule, however, extends only to facts which were actually discovered by a process initiated by the unlawful act. If information which could have emerged from an unlawful search in fact stems from an independent source, the evidence is admissible. Silverthorne Lumber Co. v. United States, supra, 251 U.S. 385, 391-392, 40 S.Ct. 182, 64 L.Ed. 319; United States v. Sheba Bracelets, Inc., 2 Cir., 248 F.2d 134, certiorari denied 355 U.S. 904, 78 S.Ct. 330, 2 L.Ed.2d 259. On the other hand, a showing that the government had sufficient independent information available so that in the normal course of events it might have discovered the questioned evidence without an illegal search cannot excuse the illegality or cure tainted matter. Such a rule would relax the protection of the right of privacy in the very cases in which, by the government's own admission, there is no reason for an unlawful search. The better the government's case against an individual, the freer it would be to invade his privacy. We cannot accept such a result. The test must be one of actualities, not possibilities.

Yet the government seems to urge just such a "possibility" rule in this case. It does not deny that the two searches in April 1958 were unlawful. Nor does it deny that Spolan's statement about the cedar lining, elicited at the April 18 search, led Agent Pera to investigate the closet at that time. It claims, rather, that the evidence seized on June 19 had an independent source; that it was the letter from Interpol, informing the Bureau of Graziani's suspected drug activities and giving the address of the apartment in Kew Gardens, which led to the discovery of the secret compartment in the cedar closet.

We cannot accept this contention. The extreme interest in the closet shown by the agents on the first unlawful search demonstrates that it was Spolan's statement about the closet lining which ultimately led to the discovery of the heroin and the letter. Of course, even without an unlawful search, the agents might have found the secret compartment. But that is not what happened. Since the search was illegal, and defendant has introduced substantial evidence showing that the heroin and the letter were uncovered as a result of this illegal search, the burden shifted to the government, which then was under an obligation to prove that its evidence had an independent origin. United States v. Coplon, supra, 2 Cir., 185 F.2d 629, 28 A.L.R.2d 1041, certiorari denied 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688; United States v. Goldstein, 2 Cir., 120 F.2d 485, affirmed Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 (dictum). Had the government shown that it had knowledge of the secret compartment from an independent source, the evidence would of course have been...