U.S. v. Rodriguez

Decision Date11 March 1976
Docket NumberD,No. 500,500
Citation532 F.2d 834
PartiesUNITED STATES of America, Appellee, v. Manuel RODRIGUEZ, a/k/a Manolo Rodriguez, Appellant. ocket 75-1287.
CourtU.S. Court of Appeals — Second Circuit

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?

Yes.

And you directed him into the house?

Yes.

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.

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 the unlawful status of those whom he was sheltering, which evidence was a prerequisite for conviction under 8 U.S.C. § 1324(a)(3), United States v. Lopez, supra. On February 13, 1975, an indictment was returned against Rodriguez by a grand jury in the Eastern District. Shortly thereafter, appellant, as owner of 18 Bunting Lane, moved to suppress any evidence resulting from the allegedly unconstitutional search of the house. The motion encompassed, among other matters, the prospective testimony of the aliens discovered as a result of the allegedly unlawful activity, see United States v. Tane, 329 F.2d 848 (2 Cir. 1964); United States v. Karathanos, 531 F.2d 26 (2 Cir. 1976).

The motion to suppress was denied by Judge Platt on March 25, 1975, following a three-day hearing at which Agent Jacobs was the only witness who testified regarding the episode at 18 Bunting Lane. The district court reasoned, in part, that since INS officers had probable cause to arrest Jorge Galaes after questioning him outside the house, they had derivative authority to order him to retrieve his passport and to accompany him when he returned to the house to obtain it. The court allowed the Government to put on the stand eight of the aliens residing at 18 Bunting Lane, and to introduce other evidence showing the number and illegal status of persons there found. While we agree with so much of the court's reasoning as we have recited, we think it insufficient to justify admission of all this evidence.

Apart from the recent decision of a divided panel in United States v. Karathanos, supra, we should have thought that in light of the distinction with respect to information given by an actual witness to or participant in a crime, made in United States v. Miley, 513 F.2d 1191, 1204 (2 Cir. 1975), cert. denied, --- U.S. ----, 96 S.Ct. ----, 46 L.Ed.2d ---- (1976), and United States v. Burke, 517 F.2d 377, 380-81 (2 Cir. 1975), and the many cases from other circuits there cited, the combination of the information given by Vilatoro and its updating by Lopez would have brought the Government within striking range of probable cause to obtain a search warrant although not quite there. Be that as it may, this information was surely enough, along with the agent's expertise, to justify Jacobs' questioning Galaes under 8 U.S.C. § 1357(a)(1), see United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607, 616 (1975). Galaes then answered that he had entered the United States as a "tourist" six years previously. While it would have been better if Agent Jacobs had followed up with a question whether Galaes had done anything to regularize his status, Jacobs could reasonably assume that Galaes would have mentioned this if he had done so. Probable cause to arrest exists when an officer has knowledge of facts and circumstances "sufficient to warrant a prudent man in believing" that an offense is being, or has been, committed, Beck v. Ohio,379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145 (1964), and does not require the arresting officer to know of facts sufficient to prove guilt at trial, Draper v. United States, 358 U.S. 307, 311-12, 79 S.Ct. 329, 331-333, 3 L.Ed.2d 327, 330-331 (1959). Accordingly, an officer need not be able to negate all possible lawful explanations of a situation before making an arrest, Adams v. Williams, 407 U.S. 143, 148-49, 92 S.Ct. 1921, 1924-1925, 32 L.Ed.2d 612, 618-619 (1972). There was thus probable cause for Galaes' arrest under 8 U.S.C. § 1357(a)(2).

This conclusion, however, does not of itself establish that Agent Jacobs was justified in accompanying Galaes into the house. There was no evidence that Galaes invited Jacobs to enter and the Government stipulated at trial that "there was no consent to search." There was equally no evidence that Galaes proffered any objection. More importantly, as we view the evidence we do not think that Jacobs was conducting a search when he entered the dwelling.

Jacobs testified...

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