532 F.2d 834 (2nd Cir. 1976), 500, United States v. Rodriguez

Docket Nº:500, Docket 75-1287.
Citation:532 F.2d 834
Party Name:UNITED STATES of America, Appellee, v. Manuel RODRIGUEZ, a/k/a Manolo Rodriguez, Appellant.
Case Date:March 11, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 834

532 F.2d 834 (2nd Cir. 1976)

UNITED STATES of America, Appellee,


Manuel RODRIGUEZ, a/k/a Manolo Rodriguez, Appellant.

No. 500, Docket 75-1287.

United States Court of Appeals, Second Circuit

March 11, 1976

Argued Nov. 28, 1975.

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[Copyrighted Material Omitted]

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Anthony F. Correri, Mineola, N. Y., for appellant.

Paul F. Corcoran, Asst. U. S. Atty., E. D. N. Y., Albany, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellee.

Before LUMBARD, FRIENDLY and MULLIGAN, Circuit Judges.

FRIENDLY, Circuit Judge:

On July 18, 1975, after trial to a jury in the District Court for the Eastern District of New York, appellant Manuel Rodriguez was judged guilty, fined, and sentenced on four counts of a twelve count indictment for harboring illegal aliens in violation of 8 U.S.C. § 1324(a)(3). Although a number of points have been raised, the only one requiring discussion is the serious claim that pivotal prosecution testimony should have been suppressed as the fruit of an illegal search.

Neil Jacobs, a criminal investigator for the Immigration and Naturalization Service (INS), testified, both at a suppression hearing and at trial, in regard to the entry, on February 12, 1975, into two houses owned by Rodriguez in Levittown on Long Island, one at 18 Bunting Lane, the entry relevant here, and the other at 113 Brittle Lane. The INS' interest in these houses had its source in an interview with one Ortilia Vilatoro, an alien who had been arrested on July 23, 1974 for being illegally in this country; she told the INS she was living at 113 Brittle Lane, had lived at 18 Bunting Lane, and had seen two or three other illegal aliens living in these houses. The interest thus created was revived in January, 1975, when Ernesto Lopez, who had been convicted for conspiring to harbor aliens, see United States v. Lopez, 521 F.2d 437 (2 Cir. 1975), cert. denied, --- U.S. ----, 96 S.Ct. 421, 46 L.Ed.2d 368, 44 U.S.L.W. 3330 (1975), told Agent Jacobs that illegal aliens were living in two houses in Levittown owned by "Manolo Martinez." Jacobs obtained authority from his superior to have agents go to the houses "to sit on the house and observe . . . if someone walked out of the house just to ask them where they were from." His purpose, as found by the district court, was to arrest aliens residing in the houses who were unlawfully in the United States, not to procure evidence to support a criminal charge against the owner. Three agents accompanied him to 18 Bunting Lane.

As events developed, extended surveillance was not required. Immediately upon arriving at 18 Bunting Lane around 7:00 a. m., Jacobs noticed a male of "Hispanic" appearance seated in an "old" car which was parked in front of the suspect house. Jacobs approached the man, subsequently identified as Jorge Galaes, and, having informed Galaes of his official status, inquired of Galaes in Spanish as to his alienage and authority to be in the country. Galaes responded that he had entered the United States from El Salvador as a tourist in 1969 and that "he came in with a passport." When Jacobs asked to see the passport, Galaes indicated that it was inside the house. Jacobs apparently then considered Galaes to be under arrest; he would not have permitted Galaes to enter the house alone. However,

I did not tell the alien he was under arrest. It was sort of implied. I did not actually come out and say "You are under arrest." I said, "You will have to come down to the office." I didn't handcuff him and drag him out. I just said, "I would like to have your passport."

Later Jacobs phrased the last remark as "Let's get your passport." And, at another point in the suppression hearing, he answered as follows:

And you then directed him to get the passport?


And you directed him into the house?


Galaes did not tell Jacobs to wait outside, nor did he object to Jacobs' accompanying him. The three other investigators followed Jacobs into the house, although at least the last one did not enter for a few minutes.

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Upon coming into the house, Jacobs was immediately in the kitchen; he there encountered Alba Rivas, who, upon being asked the same questions as had been put to Galaes, gave her name, said she was from Honduras, had entered as a tourist in 1972, and had a passport. Ms. Rivas and Mr. Galaes were placed under arrest. Agent Jacobs then asked Ms. Rivas for her passport and accompanied her to her bedroom while she was getting it; another agent went along, while a third remained in the living room to guard Galaes. In the bedroom they encountered another male. Upon being questioned by Jacobs, "He told me his name was Jose Caballero. He said he was from El Salvador. I asked him how he entered the United States. I believe he told me he paid somebody off to take him over the border." Mr. Caballero was then arrested. Having obtained Ms. Rivas' passport, the group left the room.

Another bedroom was directly opposite; Jacobs knocked on the door; a man opened it. Upon questioning, this man said he was from El Salvador, "and I believe he said he was smuggled in." Hearing breathing, Jacobs then looked under the bed and saw a female; she said she was from El Salvador and had paid someone to smuggle her in.

Before Jacobs and his partner had returned to the living room with these newly-found aliens, the fourth agent had entered the house, had found out that Galaes and Rivas had been arrested, and had proceeded upstairs. He there discovered three more aliens; Jacobs' testimony as to the circumstances of these arrests was sketchy. A ninth illegal alien was discovered by Jacobs when he, too, went upstairs and looked into a storage area with a flashlight. Finally, a tenth such alien was caught as he drove up in a stationwagon.

Each of the arrested aliens was then interviewed at INS headquarters in Manhattan and each was found to be illegally in the United States. The cumulative import of their statements was to provide evidence of appellant's knowledge of...

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