US v. Levasseur

• Decision Date: 05 September 1988
• Docket Number: Crim. A. No. 86-180-Y.
• Citation: 699 F. Supp. 995
• Parties: UNITED STATES of America v. Raymond Luc LEVASSEUR, Patricia Gros Levasseur, Thomas William Manning, Carol Ann Manning, Jaan Karl Laaman, Barbara J. Curzi-Laaman, Richard Charles Williams.
• Court: U.S. District Court — District of Massachusetts

699 F. Supp. 995

UNITED STATES of America v. Raymond Luc LEVASSEUR, Patricia Gros Levasseur, Thomas William Manning, Carol Ann Manning, Jaan Karl Laaman, Barbara J. Curzi-Laaman, Richard Charles Williams.

Crim. A. No. 86-180-Y.

United States District Court, D. Massachusetts.

September 5, 1988.

Michael K. Loucks and David L. Douglass, Asst. U.S. Attys., Boston, Mass., for the U.S.

Raymond Luc Levasseur, pro se.

Gombiner & Avenia by Peter Avenia, New York City, for defendant Raymond Luc Levasseur.

William Newman, Northampton, Mass., for defendant Patricia Gros Levasseur.

Fenn & King by Kenneth King, Jamaica Plain, Boston, Mass., for defendant Thomas William Manning.

Elizabeth M. Fink, Brooklyn, N.Y., for defendant Carol Ann Manning.

Daniel Meyers, New York City, and Schlang & Burrows by Steven Schlang, Northampton, Mass., for defendant Jaan Karl Laaman.

Linda Thompson, Springfield, Mass., for defendant Barbara J. Curzi-Laaman.

Robert Boyle, Brooklyn, N.Y., and Lewis S. Gurwitz, Winthrop, Mass., for defendant Richard Charles Williams.

MEMORANDUM AND ORDER

YOUNG, District Judge.

The findings and rulings on pre-trial motions set forth below were delivered orally from the bench on June 20, 1988, the Court reserving the right to issue a written opinion. This is that opinion.

The defendants are before this Court seeking the suppression of evidence seized by FBI agents upon their arrests in Ohio and Virginia in 1984 and 1985 respectively. The defendants assert two grounds for the suppression of evidence: first, the failure of law enforcement agents to secure a search warrant for the residence at 4248 West 22nd Street, Cleveland, Ohio, before ordering all occupants therein to exit; and second, the treatment of the children of six of the seven defendants by law enforcement officials after the arrest of the defendants. The Court will consider their arguments seriatim.

I. The Search of 4248 West 22nd Street

This Court must first determine whether the defendants¹ are collaterally estopped from raising this issue because they have already litigated it, unsuccessfully, in the Eastern District of New York. See United States v. Levasseur, 618 F.Supp. 1390, 1393-93 (E.D.N.Y.1985) (holding that the protective sweep through the home after the defendants' arrest was lawful and refusing to suppress evidence seized thereby). This issue was not appealed to the Second Circuit. See United States v. Levasseur, 816 F.2d 37, 42 (2d Cir.1987). This Court holds that the defendants are not collaterally estopped from raising this issue for two reasons. First, the exact question raised herein — did the FBI's order-to-exit, i.e., that all the persons inside the 4248 West 22nd Street residence exit that house, violate the Fourth Amendment as interpreted by the Supreme Court in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)? — apparently was not raised in the Eastern District of New York.² Second, even if the issue was raised in the Eastern District and that court sub silentio reached a conclusion that Steagald did not require suppression, this Court must nevertheless interpret the controlling law to determine if it is the same as the law as interpreted by the Eastern District. This Court determines that the principles of Steagald dictate an opposite result.

The relevant findings of fact pertaining to this matter have been fully set forth both in the opinion of the Eastern District, United States v. Levasseur, 618 F.Supp. 1390 (E.D.N.Y.1985),³ and in the findings of this Court in its Supplemental Memorandum of March 18, 1988 Addressing the Motions to Suppress of Richard Williams and Barbara Curzi-Laaman (hereinafter, the "Supplemental Memorandum"). The facts, as summarized in the latter memorandum, are as follows:

In late 1984, Raymond Levasseur ("Levasseur"), Patricia Gros ("Gros"), Thomas and Carol Manning, Jaan Laaman ("Laaman"), Richard Williams ("Williams"), and Barbara Curzi-Laaman ("Curzi") were the subjects of one of the largest man hunts in the country. Certain of these individuals were being sought for a series of crimes, including bombings. Thomas Manning and Williams were wanted for the murder of a New Jersey State trooper and Laaman was wanted for the attempted murder of two Massachusetts State troopers. Levasseur and Carol Manning were wanted for bank robbery. Curzi, who was believed to be living with Laaman, was not the subject of any outstanding arrest warrant.

The FBI considered these individuals, as a group, to be armed and extremely dangerous. The FBI believed that the males, and perhaps the females as well, were proficient in the use of automatic weapons. Wanted posters published by the FBI warned other law enforcement agencies that these individuals ought to be approached with "extreme caution" and that "no action should be taken which would endanger anyone's safety."

On November 3, 1984, law enforcement agents spotted Gros and trailed her to a house in Deerfield, Ohio. Their surveillance of the house was rewarded when, later that day, Williams was spotted driving away from that residence. Tailing Williams, FBI agents observed him stop and make a call from a pay telephone along the roadside. Williams then proceeded to Cleveland, Ohio, where he eventually turned onto West 22nd Street. The FBI agents did not see him emerge from West 22nd Street, but were certain he had entered one of the residences on that street. Agents quickly sealed off the street and placed the entire area under surveillance. Unsure of Williams' exact location and concerned that it be pinpointed due to the presence of other residents in the area, the FBI, with the apparent cooperation of the local telephone company, ran traces on numbers called from the roadside pay telephone that day. In the early morning hours of Sunday, November 4, 1984, the FBI learned from the telephone company that a call had in fact been placed from that pay telephone to a telephone registered in the name of Lisa Owens at 4248 West 22nd Street. Attention now focused upon that specific residence.

November 4th dawned dark and rainy. It had rained through the night and continued to rain that morning. Nevertheless, FBI agents observed Williams emerge from the home at 4248 West 22nd Street, go to his car, open the trunk, take something out and return to the home.

With Williams' location definitely established, the FBI, suspecting that he might be in the company of other individuals whom they were also seeking to arrest, moved into action. Within the two hours that followed, more than 35 law enforcement officers—most of them briefed from a wanted poster which named and displayed photographs of all seven persons thought to be part of an alleged terrorist group — encircled the area. Among the forces present was a SWAT team of FBI agents flown in from Pittsburgh, a double SWAT team of Cleveland police officers, and a police officer skilled in bomb disposal. The SWAT team of FBI agents were dressed in khaki and they and many of the other officers present were wearing bulletproof vests. The various SWAT team members carried automatic rifles which the Court infers were set to fire in a semi-automatic mode. The FBI had also requisitioned from the Cleveland police a large armored car designed to operate in a live fire area by driving astraddle the prone body of a shooting victim and rescuing him or her through a trap door in its chassis. This armored vehicle has affectionately been dubbed "Mother" by the law enforcement agencies employing it.

Because the telephone at 4248 West 22nd Street was currently registered in the name of Lisa Owens, the FBI agents had probable cause to believe that Williams was not alone in the house. While they suspected that other members of the alleged terrorist group whom they were seeking could well be with him, they did not then have probable cause to believe that any other individual they were seeking was inside the house. The name "Lisa Owens" was not known to the agents either as a genuine person nor as an alias of anyone associated with the group. Although sufficient time existed to obtain a search warrant for the premises once they were identified by tracing back the telephone call, no search warrant had then been sought.

At approximately 10 a.m., all was in readiness. A column of automobiles, with "Mother" in the center, drove down West 22nd Street. The column stopped, with "Mother" positioned directly in front of 4248 West 22nd Street. At the same time, the SWAT teams moved up on either side of the house. Once the vehicles stopped, the FBI agents and police therein got out and, using the vehicles as shields, drew their weapons.

At that moment, 10:12 a.m., an FBI agent telephoned the residence. A female voice answered. The FBI agent identified himself, informed the woman that the house was surrounded, and ordered all the occupants to leave. The phone then went dead. Outside in the pouring rain the FBI agent in charge, Richard D. Schwein, ordered everyone out of the house through a bullhorn. For a few long moments, nothing happened. Then phone contact was reestablished and a woman's voice said, "There are children in here. We need time to get their shoes on." Again the occupants were ordered out of the house immediately. Another two minutes went by. The front door of the home then opened and three small children, ages 10, 9, and 2, came out into the rain. They were ordered to put their hands up and walk along the street. As soon as they were to one side of any expected line of fire, FBI agents shepherded them into the shelter of a nearby porch. Mr. Williams next appeared at the door of the home clad in a T-shirt and pants. He walked outside with his hands up. At the agents' command, he then lay face-down on the sidewalk while agents approached him, handcuffed his wrists behind his back, and took him into custody.

Laaman and Curzi then appeared at the door, hand in hand. They were ordered to raise...