678 F.2d 382 (2nd Cir. 1982), 824, United States v. Rea

Docket Nº:824, Docket 81-1463.
Citation:678 F.2d 382
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Peter REA, Defendant-Appellant.
Case Date:May 03, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 382

678 F.2d 382 (2nd Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Peter REA, Defendant-Appellant.

No. 824, Docket 81-1463.

United States Court of Appeals, Second Circuit

May 3, 1982

Argued March 5, 1982.

Page 383

Leonard R. Rosenblatt, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. N. Y., Mary McGowan Davis, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for plaintiff-appellee.

Phylis Skloot Bamberger, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant.

Before KAUFMAN and PIERCE, Circuit Judges, and HAIGHT, District Judge. [*]

PIERCE, Circuit Judge:

On December 11, 1979, appellant Peter Rea pleaded guilty to an information which charged him with conspiracy to engage in the business of dealing in firearms without a license in violation of 18 U.S.C. § 922(a). On February 15, 1980, imposition of sentence was suspended and Rea was placed on probation for a period of three years. Rea was required to comply with certain stated conditions of probation. These conditions included that appellant refrain from violating any federal, state, or local laws; that he not leave the Eastern District of New York without the permission of his probation officer; that he follow the probation officer's instructions and report as directed; and, that he report immediately to his probation

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officer if arrested or questioned by a law-enforcement officer. 1

On May 29, 1981, Rea was arrested by his probation officer, Christopher Swords, and was charged with having violated the conditions of his probation in that (1) he had left the Eastern District of New York and travelled to Washington, D. C. without the permission of his probation officer; (2) he was found in possession of illegal weapons, including a loaded .25 caliber revolver; and (3) he had neglected to inform his probation officer that he had been questioned by a New York City police officer following an auto accident which occurred on May 21, 1981. Appellant denied the charges filed against him, and a probation revocation hearing was held, following which Judge Neaher found that Rea had violated the conditions of probation; his probation was revoked and the judge imposed an eighteen month sentence of imprisonment.

The circumstances which led to appellant's arrest are not in dispute. On May 26, 1981, Probation Officer Swords received a telephone call from an anonymous person who stated that he had "information" regarding Rea. The caller stated that Rea had recently travelled outside the Eastern District of New York; that he had cocaine in his apartment; that he was in possession of a "phony Greek baptismal certificate"; that he had been involved in an automobile accident; and that he was involved in a scheme to defraud the American Express Company by submitting fraudulent claims for the replacement of travelers checks falsely reported lost or stolen. The caller told Swords that he had also informed an American Express Company employee of the travelers checks scheme. Swords then called the American Express employee, who confirmed that he had received a similar anonymous telephone call and that, based upon a preliminary investigation, the information appeared to be accurate.

On May 27, 1981, the day after he received the anonymous telephone call, Swords went to the 106th Precinct in Queens, where he checked the precinct records. These records indicated that Rea had apparently been involved in an automobile accident at approximately 3:00 a. m. on May 21, 1981, and had been questioned by a police officer of that precinct. Swords then interviewed the police officer, who confirmed that he had interviewed Rea after the accident.

Finally, on May 29, 1981, Swords went to the home of Rea and his common-law wife, Camille DeLucia. He was accompanied by three other probation officers. Two of the probation officers remained in the car while Swords and his partner, Victor Zaccheo, went to appellant's apartment and were

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admitted by DeLucia. Rea appeared shortly thereafter, and he, DeLucia, Swords, and Zaccheo went into the dining room. Swords first asked Rea and DeLucia what was new. Both replied that "nothing was new." Swords then questioned Rea about his automobile, and began taking down numbers from Rea's operator's license. Appellant stated that he had been in a "minor accident." At that point, Swords revealed that he already knew about the accident, and asked whether appellant had been questioned by a police officer. Appellant stated that he had, and Swords reminded him of Condition 1 of his probation, which required that he report any questioning by a law-enforcement officer to his probation officer. Swords then told appellant that he had probable cause to believe that appellant was in violation of this condition of his probation.

Next, Swords asked Rea and DeLucia whether they objected to him and Zaccheo "having a look around." Rea and DeLucia stated that they did not object and Zaccheo went to summon the other two probation officers. When they returned Swords stated again that he had reason to believe that appellant was in violation of the conditions of his probation, and that the officers were going to conduct a "reasonable cause search." At that point, both Rea and DeLucia objected to the search, and DeLucia began crying and appeared to become somewhat hysterical. Swords suggested that DeLucia leave the apartment since the search did not involve her. After DeLucia left, Swords informed Rea of the information he had received from the anonymous telephone caller. Swords then asked specifically about the fraudulent baptismal certificates. Rea acknowledged having some, and gave them to the probation officers. The three other probation officers began to search the apartment while Swords and the appellant sat in the dining room. While the search was being conducted Swords asked appellant whether he had recently travelled outside the Eastern District of New York to Washington, D.C. Appellant replied that he would rather not talk about that, and stated that he wanted to speak to an attorney before answering that question. Swords dropped the subject and asked where Rea had obtained the baptismal certificates. Rea responded that a friend had given them to him. Thereafter, for fifteen to twenty minutes Swords questioned Rea about the alleged American Express fraud. Rea admitted his involvement and supplied information with regard to another participant in the scheme. During this discussion defendant stated that he had gone to Washington, D.C. on May 7, 1981 in order to cash American Express travelers checks.

The search of Rea's apartment led to the discovery of a loaded pistol and ammunition, holsters, knives, tear gas pellets, marijuana, and a triple beam scale. After the search was completed Swords left the apartment to telephone his supervisor to obtain authorization to arrest the appellant. He received this authorization, returned, and arrested Rea for violation of the terms of probation. 2

On June 4, 1981, Judge Neaher held a probation revocation hearing. Appellant was represented by counsel who argued that any evidence seized in the warrantless search of Rea's home, as well as any statements made by him after his request for counsel was ignored, were inadmissible at the hearing. The Government contended that a probation officer can lawfully search a probationer's home without a warrant, and that a probationer has no right to counsel when answering questions posed by his probation officer during the course of supervision.

On September 21, 1981, Judge Neaher issued an opinion in which he found that both the evidence seized by Swords and the statements made by Rea after his request for counsel was ignored, were admissible in evidence at the probation revocation hearing. 524 F.Supp. 427. Judge Neaher then found that...

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