United States v. Edwards
| Citation | 443 F. Supp. 192 |
| Decision Date | 05 December 1977 |
| Docket Number | CR 76-314-T. |
| Parties | UNITED STATES v. Raymond EDWARDS, David Richards, Irvin Zide and Jean Wallace. |
| Court | U.S. District Court — District of Massachusetts |
James E. O'Neil, Asst. U. S. Atty., for the United States.
Jack I. Zalkind, Ronald J. Chisholm, Christopher Dye, Crane & Inker, Willie J. Davis, Boston, Mass., for defendants.
Defendants Raymond Edwards, David Richards and Irvin Zide are charged in a two count indictment with conspiracy and possession of heroin with intent to distribute. Defendant Wallace is named in a misdemeanor information for simple possession of heroin.
Before the court are two distinct motions to suppress. In one, defendants Edwards, Richards and Zide jointly move to suppress a package, allegedly containing several ounces of heroin, that was seized at a residence in Randolph, Massachusetts. In the second, defendant Wallace seeks to suppress a small packet of heroin seized from her, and statements she made while she was in custody in the U.S. Marshal's lock-up.
On the basis of the evidence and arguments presented, this court denies the joint motion to suppress the package, but allows Wallace's motion to suppress the packets and statements.
On July 15, 1976 an unidentified man, allegedly defendant Zide, approached the shipping counter of United Airlines in Los Angeles. He was carrying a package addressed to David Richards in South Boston, Massachusetts (Richards package) which he wanted to send by United to Boston. At the counter, the man spoke with Robert Newlands, a Customer Service Agent (C.S.A.) employed by the airlines. The man filled out a shipping slip, paid a $42.00 fee in cash, and declared that the package contained "film." Newlands took the package from the man and, rather than immediately processing it, placed it on the counter while he serviced another customer. At that point, the man left the counter and was observed by C.S.A. Newlands and his colleague, C.S.A. Morris, to act in a manner they deemed suspicious. After leaving the counter, the man hid behind a post in the terminal, apparently seeking to watch the agents and the package without being seen. He then proceeded to a crowded lobby, some 560 feet from the counter, where he stood near the terminal exit and continued to observe the scene from that vantage point for three or four minutes. The man next exited the building and resumed his surveillance through the windows for several more minutes. Reacting to their suspicions, one of the C.S.A.'s removed the package from the counter. Their last view of this man was as he ran across the street in front of the terminal, pausing on the median strip to glance back into the building.
Morris opened the package in his supervisor's office. Inside, he found four sealed clear plastic bags containing a brown substance.
The supervisor then called the Los Angeles Police Department. Shortly thereafter, Officer Celmer of the L.A.P.D. Narcotics Division appeared at the supervisor's office. Morris told Celmer that he had opened the Richards package because he feared that it might contain hazardous materials, perhaps flammables or even explosives. When Celmer first observed the package, it was open and contained four plastic bags. He removed the package to a police substation at the airport where a field test on the contents of the bags indicated that they contained heroin. Celmer then contacted the FBI in Boston concerning the package. He was referred to DEA Special Agent Richard O'Connor. In four phone calls on the evening of July 15, 1977, Celmer explained to O'Connor the circumstances leading up to his possession of the Richards package. When Celmer expressed a desire to convoy the package, O'Connor advised him that such an interstate shipment was within the jurisdiction of the FBI and that Celmer should contact the FBI in Los Angeles to carry out the convoy. Celmer reached FBI Agent Roberts in L.A. and turned over to him eight of the ten ounces from the package.
The Los Angeles FBI then executed a controlled delivery of the Richards package to Boston, where it was placed for pick-up at the United Airlines terminal of Logan Airport on the morning of July 16. At approximately 10:40 a. m. on that day, DEA agents observed an unidentified man, later identified as David Richards, pick up the package. The agents continued to follow the man as he travelled by bus and then car to a residence in Randolph, Massachusetts.1
An FBI agent witnessed the man pull up in front of 27 Eugenia Street, Randolph, where defendant Edwards was observed to meet him. The two men went to the trunk of the car and removed the Richards package. At that point, there was some conversation between the two men, and Edwards gestured toward FBI Agent Murphy, who was at a nearby surveillance post, causing Murphy to worry that Edwards, with whom he was acquainted, had recognized him. The men then entered the residence, with Edwards carrying the package.
Shortly thereafter, at approximately 11:35 a. m., the agents were given radio instructions to make an entry. As they moved toward the door, one of the agents heard the sound of running water. Several agents then entered the residence through an unlocked door, without a warrant or permission. The lead agent had his gun drawn. As they entered the house, one agent determined that the sound of running water came from either the sink or the dishwasher.
The agents discovered a group of people, including Edwards, Richards and Wallace, sitting in the kitchen. There was a stove in the room. Two of the defendants, Edwards and Richards, were put up against a wall and frisked. Edwards was then handcuffed. The agents conducted a "body search" of the house, but did not look for or seize the package at that time. For the next one and one-half hours, the agents "secured" the house. They acknowledged that they would not have permitted anyone to leave the premises.
The magistrate issued a warrant, based upon Simpkins' affidavit, shortly after noon on July 16.
Word that the warrant had been issued was radioed to the agents at 27 Eugenia Street. They proceeded to search the premises at about 1:15 p. m. on that day. The Richards package was discovered on a shelf in a pantry adjoining the kitchen — several feet from the defendants. The package had been slit open. Subsequent to the search, those present in the kitchen were placed under arrest, without authorizing warrant, and transported to the Federal building in Boston. Among those arrested were defendants Richards, Edwards and Wallace.
At the Federal building, defendant Wallace was placed in the Marshal's lock-up where Agent Patricia Meade performed a strip search on her without a search warrant. The agent discovered a small packet in Wallace's clothes. Without informing Wallace of her rights, Meade asked her what the packet was. Wallace replied that she had been trying to get rid of it since the time of her arrest, and that it was for somebody in South Boston. The government alleges that the packet contained .27 grams of heroin.
On July 21, 1976 Agent Simpkins filed with the magistrate an "Amended Affidavit" that attempted to correct a misstatement in the July 16 affidavit. In the second affidavit, Simpkins stated that he had talked directly to Officer Celmer for the first time on July 19. During that conversation, it was revealed to Simpkins that C.S.A. Morris, rather than Celmer had opened the Richards package based on concerns for its contents. The magistrate noted on the amended affidavit that it was "denied insofar as this affidavit is offered after the warrant was executed."
On February 17, 1977 this court conducted a hearing on defendants' motions to suppress. At the hearing there was a great deal of evidence introduced as to the circumstances surrounding the discrepancy between the two affidavits. It is clear from the testimony, however, that it was Morris, not Celmer, who initially opened the package. The confusion may have stemmed from the fact that Celmer did subsequently open the package. Furthermore, the testimony indicated that Celmer thought he had told O'Connor that Morris had initially opened the package, whereas O'Connor believed that he was told that Celmer initially opened the package. It is evident that all the information which Simpkins received about events in Los Angeles was filtered through O'Connor.
On the basis of the evidence presented, the court finds that the misstatement in Simpkins' original affidavit was...
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