U.S. v. Dessesaure

• Citation: 429 F.3d 359
• Decision Date: 30 November 2005
• Docket Number: No. 04-2170.,04-2170.
• Parties: UNITED STATES of America, Appellant, v. Earl DESSESAURE, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 359

429 F.3d 359

UNITED STATES of America, Appellant, v. Earl DESSESAURE, Defendant, Appellee.

No. 04-2170.

United States Court of Appeals, First Circuit.

Heard October 5, 2005.

Decided November 30, 2005.

Robert E. Richardson, Assistant United States Attorney, with whom Michael J Sullivan, United States Attorney, and Cynthia A. Young, Assistant United States Attorney, were on brief, for appellant.

Steven L. Winniman, for appellee.

Before LYNCH, Circuit Judge, CAMPBELL and CYR, Senior Circuit Judges.

LYNCH, Circuit Judge.

The prosecution takes this interlocutory appeal, under 18 U.S.C. § 3731, from the district court's partial allowance of the defendant's motion to suppress evidence and denial of the prosecution's motion for reconsideration. United States v. Dessesaure (Dessesaure I), 314 F.Supp.2d 81 (D.Mass.2004); United States v. Dessesaure (Dessesaure II), 323 F.Supp.2d 211 (D.Mass.2004).

In sum, the district court suppressed evidence seized from Earl Dessesaure's apartment (consisting of heroin, drug paraphernalia, a gun, and bullets) pursuant to a warrant because the warrant affidavit contained information that the police observed when they earlier illegally entered the apartment to "freeze" it and because of material misstatements in that affidavit. Accepting as accurate these factual conclusions, we nonetheless disagree with the trial court's ultimate conclusion that suppression was required. Rather, we find that, even after striking the offending material from the warrant, there was adequate basis for a probable cause determination and the officers would have sought a warrant regardless. We reverse.

I.

For our purposes, a greatly streamlined version of the facts taken from the suppression hearing, geared to the issues described above, is all that is necessary.

The investigation of Dessesaure began when Officer John Broderick, Jr. received information from "different sources" that Dessesaure was selling heroin out of a maroon Cadillac Escalade with a particular license plate.¹ Dessesaure I, 314 F.Supp.2d at 83. The license plate number given by the sources matched that of a maroon Cadillac Escalade registered to Dessesaure at an address in Quincy, Massachusetts.

In the early hours of February 24, 2003, police began surveillance on the Quincy apartment. Id. at 86. At 9:00 a.m., Officer Paul Quinn observed Dessesaure leave the Quincy apartment and throw a trash bag in a dumpster before he drove off. Id. Quinn recovered the trash bag and found a "residue of an unknown powder substance" and a utility bill with Dessesaure's name and the address of the Quincy apartment. The residue was not field tested to confirm that it was heroin. Id. Officers followed Dessesaure in his Escalade to a home in Boston's Dorchester neighborhood and saw Dessesaure enter, carrying a black shoulder bag. Id. He emerged two minutes later, as did his girlfriend, Tina Tate. Id. at 86-87. The police followed Dessesaure to Brigham and Women's Hospital, where Tate went in and returned ten minutes later. Id. at 87. The police then lost surveillance for some time. When they reestablished contact with the car again at approximately 11:15 a.m., Dessesaure and Tate were returning to Quincy. Id. Dessesaure made a number of evasive maneuvers as he drove and did not take the most direct route back to the Quincy apartment. Id. Officer Broderick testified that such driving is often employed by drug traffickers to see if they are being followed by law enforcement officers.² Id.

Dessesaure and Tate returned to the Quincy apartment. Approximately 20 minutes later, Dessesaure left alone and drove into Boston, followed by the officers. Id. Once in Boston, Dessesaure pulled his Escalade over on a street in the South End and picked up a man, Nelson Boyd. Dessesaure drove Boyd for a few blocks and stopped. Id. Boyd got out of the car and Dessesaure drove away. Police officers, including Broderick, stopped Boyd and searched him, recovering a plastic bag they supposed, based on their experience, contained heroin. Id. Boyd lied, telling officers that he had never even been in the Escalade. As to whether Boyd acquired the heroin while in Dessesaure's car, Officer Juan Seoane, who, along with Broderick, had been following Dessesaure before Dessesaure picked up Boyd, testified that Boyd did not appear to be carrying anything when he entered the vehicle. Id. However, Seoane also testified that he could not see an exchange being made while Boyd was in the Escalade. The district court noted that "the bag was small and would not necessarily have been apparent to the surveilling officers." Id.

While Broderick remained behind with Boyd, other officers, including Officer Seoane, continued to follow the Escalade. Dessesaure drove erratically after dropping Boyd off. Id. Seoane testified that, based on his experience, Dessesaure's driving was consistent with that of drug dealers who, after conducting a drug sale, attempt to make sure that they are not being followed. Id. Once the officers following Dessesaure were informed that heroin had been found on Boyd, they pulled over the Escalade. While the officers obtained no contraband from a pat-frisk of Dessesaure and a search of the car, Seoane noted that Dessesaure's pants zipper was open and his shirt was pulled out through his fly. Id. Seoane testified that in his experience, it was common for a drug dealer to hide his wares in his rectum to avoid detection. Id. at 87-88. The implication was that Dessesaure had put drugs in his rectum at home and just had retrieved a bag to sell to Boyd. Dessesaure was arrested on the street by Officer Seoane. Id.

Officers took Dessesaure to the station house to be booked; Seoane followed them in Dessesaure's car. Broderick arrived a short time later. Broderick questioned Dessesaure at the booking desk. Both Broderick and Dessesaure testified that Broderick told Dessesaure he was going to get a warrant to search the Quincy apartment. When Broderick asked Dessesaure where he lived, Dessesaure replied that he lived in Roxbury. That was not true; he lived in Quincy. Broderick testified that he warned Dessesaure at the booking desk that if heroin was found in his apartment, his girlfriend could be charged. Broderick stated that Dessesaure then informed him of the location of the heroin in the Quincy apartment, with the hope that his girlfriend would not be charged. Id. at 89. Dessesaure denied ever making these statements. The district court noted that Broderick could not satisfactorily explain why these statements were not recorded in any way, and thus gave "no credit to Broderick's claims that defendant made statements about drugs in his apartment."³ Id. After questioning Dessesaure, Broderick and other officers took Dessesaure's keys and proceeded to the Quincy apartment for the purpose of "freezing" it on Broderick's way to get a warrant. Id. The goal of a "freeze," it seems, is to secure a location to prevent its occupants from destroying evidence while a search warrant is being obtained.

From the record, the government suggests to us and the district court that Broderick thought he could enter the apartment to "freeze it" absent exigent circumstances based on vague and broad language in a state court opinion. See Dessesaure II, 323 F.Supp.2d at 216 & n. 10 (discussing Commonwealth v. Alvarez, 422 Mass. 198, 661 N.E.2d 1293 (1996)). The testimony of the officers at the suppression hearing, however, dealt more with whether there were exigent circumstances justifying the pre-warrant entry.

Broderick testified that at the station house Seoane told him that as Dessesaure was being arrested, Desseaure had yelled something to the gathering crowd about calling "his peeps." Dessesaure I, 314 F.Supp.2d at 88. Broderick took this statement to be an attempt by Dessesaure to communicate the fact of his arrest to people who might be in a position to destroy evidence; he testified that he believed Dessesaure's statement created exigent circumstances necessitating a "freeze" of Dessesaure's apartment. Id. at 88. The district court did not believe Broderick, finding that he had "fabricated [Dessesaure's] alleged statement."⁴ Id. Seoane testified that at the station house, he witnessed Dessesaure sign a written waiver of his Miranda rights. The government, however, was unable to produce the signed waiver, leading the district court to the "inevitable conclusion that [the waiver] simply never existed." Id. at 89 n. 12.

At the station house, Seone followed up on his earlier observation of Dessesaure's open pants zipper by conducting a strip search of Dessesaure. Id. at 88. He found that Dessesaure had secreted a plastic bag containing six smaller plastic bags of heroin in his rectum. Seoane also found sixty dollars in Dessesaure's shirt pocket. Id. Seoane testified that Dessesaure later told him he was selling bags of heroin for sixty dollars, but the district court noted that "[t]his statement was not recorded in any police document." Id. at 88-89.

In the meantime, Broderick and the officers used Dessesaure's keys to enter the Quincy apartment and found Tina Tate inside. Id. at 89. The officers detained Tate and made a number of observations which were used shortly thereafter in the warrant affidavit. The items observed and recited in the affidavit included "sixteen (16) `bundles' of glassine bags, five (5) loose glassine bags, a large plastic bag containing a powder believed to be Heroin, a digital scale, a roll of tape, a box containing hundreds of empty glassine bags, a bag of small black elastics, a ceramic plate with two plastic [transit] passes." Broderick testified that he then telephoned back to the station house, where Dessesaure was being detained, and informed Seoane what the officers had found in Dessesaure's apartment. Id. at 90. Seoane testified that when he informed Dessesaure what was found during the "freeze" of the apartment, Dessesaure gave him...