742 F.2d 656 (1st Cir. 1984), 82-1102, United States v. Palumbo

Docket Nº:82-1102.
Citation:742 F.2d 656
Party Name:UNITED STATES of America, Appellee, v. Ralph Joseph PALUMBO, Defendant, Appellant.
Case Date:March 22, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 656

742 F.2d 656 (1st Cir. 1984)

UNITED STATES of America, Appellee,

v.

Ralph Joseph PALUMBO, Defendant, Appellant.

No. 82-1102.

United States Court of Appeals, First Circuit

March 22, 1984

Argued Sept. 14, 1983.

Opinion on Rehearing

Sept. 14, 1984.

Page 657

David Levy, Jamaica Plain, Mass., by appointment of the Court, with whom Taff, Levy & Presley, Jamaica Plain, Mass., was on brief, for defendant, appellant.

Helen J. Forsyth, Asst. U.S. Atty., Concord, N.H., with whom W. Stephen Thayer, III, U.S. Atty., Richard F. Johnston, Asst. U.S. Atty., Concord, N.H., was on brief, for appellee.

Before BOWNES, Circuit Judge, ALDRICH and SKELTON [*], Senior Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

In this proceeding Ralph J. Palumbo appeals his three-count conviction for possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Although there was a warrantless police entry and occupancy of Palumbo's home subsequent to his arrest that violated the fourth amendment, it had no consequences, and we hold it did not taint items later discovered and seized as the result of independent probable cause and a valid warrant.

With the assistance of a police informer, a law enforcement team comprised of officers from the Maine State Police, the New Hampshire State Police, and the federal Drug Enforcement Administration (DEA), arranged to purchase ten ounces of cocaine from Palumbo's codefendant Robert Walker. 1 During telephone conversations between Walker and the informant, John Bradley, setting up the sale, Walker identified Palumbo as his source of supply. Walker agreed to consummate the deal on July 14, 1981, in Salem, New Hampshire. The law enforcement team commenced surveillance of Walker on July 14. Trooper Williamson of the New Hampshire State Police observed Walker's car leave the Palumbo residence and drive to the place designated for the sale, the Salem Inn. Bradley and DEA agent Gerald Graffam, who was working undercover as informant Bradley's driver, displayed $25,000 in a briefcase to Walker. Walker then stated that Palumbo did not want to travel to Salem and the sale would be completed in Dover, New Hampshire. Dover is about five miles from Palumbo's home in Berwick, Maine.

Later that day, at approximately 5:00 p.m., Walker and Bradley met in the lounge of the Ramada Inn in Dover. After a brief conversation, Walker left the Inn. Trooper Williamson, utilizing aerial surveillance, observed him drive to the Palumbo home and pick up Palumbo. Walker's automobile was shortly thereafter seen in the parking lot of the Ramada Inn. Informant Bradley entered the Walker car where Walker and Palumbo were sitting and a brown paper bag was passed to Bradley. After observing a white powder in the bag, Bradley gave the signal and Palumbo and Walker were arrested. At the moment of the arrest, informant Bradley was in the back seat with the package of white powder and the empty briefcase. A field test revealed the powder to be cocaine.

The arrests occurred at approximately 6:00 p.m. A short time later, it was decided to obtain a search warrant for the Palumbo home in Berwick, Maine. A search warrant was authorized at approximately 11:00 p.m. by a Maine state judge.

We pause here to address plaintiff's contention that there were intentional or reckless

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misstatements in the affidavit for the warrant, which statements were necessary to the determination of probable cause. The court held a hearing under Franks v. Delaware, 1978, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667, and found that, in fact, certain intentional misstatements had been made. Nevertheless, it held that, even excluding these statements, the affidavit established probable cause. We agree.

Stripped to its essentials, and without the misstatements, the affidavit still established that (1) Walker stated Palumbo was his source for cocaine, (2) prior to the transaction, Walker stated that Palumbo had asked that the meeting place be changed from Salem to Dover, New Hampshire, a place nearer Palumbo's home, (3) Walker was observed travelling to Palumbo's home immediately prior to the transaction, and returning toward the Ramada Inn in Dover with Palumbo, and (4) Walker and Palumbo transferred cocaine to the government informant at the Dover Ramada Inn. Warrant affidavits are to be read in a common sense manner. United States v. Ventresca, 1965, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684. Here we have no trouble finding the magistrate had a "substantial basis" for concluding, see Illinois v. Gates, 1983, 462 U.S. 213, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, that there was "reasonable cause to believe" there was evidence of Palumbo's cocaine dealing inside his home. See Zurcher v. Stanford Daily, 1978, 436 U.S. 547, 556-57, 98 S.Ct. 1970, 1976-77, 56 L.Ed.2d 525. The warrant was therefore valid, despite the misdirected effort of the police.

At the same time that the officers decided to obtain a search warrant, they also decided to "secure" the Palumbo home pending application for, and the authorization of, the warrant. Apparently this decision was communicated to Assistant District Attorney Libby, who approved it. The reason DEA agent Graffam gave at the suppression hearing for "securing" the Palumbo home prior to obtaining a warrant was that, prior to the transaction, a check of the DEA computer indicated that Donna Palumbo had been rumored to be in the drug trafficking business with her husband. Graffam felt that Palumbo would have been expected home by his wife shortly after the drug sale and, if he did not show up within a reasonable time, she would assume something had happened to him and destroy any drugs in the house. She might also learn of trouble directly, there being numerous witnesses at the Ramada Inn watching the arrest, and Palumbo being fairly well-known in the area.

The police had no affirmative evidence to back up these apprehensions, and we consider it a rather thin case of exigent circumstances, which should be anything but automatic. We do note, in passing, that defendant's complaint that the police were ignorant as to whether Mrs. Palumbo was at home is unjustified. As a result of knocking they knew she was home prior to entering, and there is no evidence that they planned a forceful entry if the house was vacant.

Sometime between 6:30 and 7:00 p.m., a contingent of police officers went to the Palumbo home. When Mrs. Palumbo opened the door, two officers showed their badges, entered the house without consent, and informed her they had probable cause to search the house and were awaiting the arrival of a search warrant. Three or more officers, also in plain clothes, then entered the Palumbo residence. Mrs. Palumbo demanded to see a warrant. After the officers said one was coming, Mrs. Palumbo ordered them out of her home, but they refused, telling her that they were "securing the premises" in anticipation of the arrival of the warrant. Mrs. Palumbo asked if she and her two teenage children could leave and she was told that her children could leave, but that she could not.

The Court has noted that "imminent destruction, removal, or concealment of the [evidence] to be seized" may be one type of exigent circumstance which would justify warrantless entry into a dwelling. United States v. Jeffers, 1951, 342 U.S. 48, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59; Johnson v. United

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States, 1948, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436. We have so held. United States v. DiGregorio, 1 Cir., 1979, 605 F.2d 1184, 1188, cert. denied, 444 U.S. 937, 944, 983, 100 S.Ct. 287, 302, 489, 62 L.Ed.2d 197; United States v. Edwards, 1 Cir., 1979, 602 F.2d 458, 468. When such an exigency is found, however, the least restrictive intrusion is to be adopted, or the whole constitutional requirement for obtaining a warrant would be defeated. When it is known that no one is presently on the premises, they may be secured merely by guarding the entrances. Cf. United States v. Agapito, 2 Cir., 1980, 620 F.2d 324, 337 cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40; United States v. Young, 8 Cir., 1977, 553 F.2d 1132, 1134, cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278. When persons are present and such persons may reasonably be feared to pose a substantial threat to destroy evidence, more intrusive action may be proper. Cf. United States v. Edwards, ante, 602 F.2d at 461. Even then, the police might be well advised to give the occupants a choice of exiting the premises. See United States v. DiGregorio, ante, 605 F.2d at 1188 n. 3. This might be accompanied by "a very quick and limited pass through the premises to check for third persons who may destroy evidence." United States v. Agapito, ante, 620 F.2d at 335.

Even assuming the police here had sufficient grounds to enter and "secure," at least to a minor extent they acted excessively. Upon entry, they fanned out through the house, outside the sight of the Palumbo family in the kitchen--Mrs. Palumbo, Mr. Palumbo, Sr., and children. A brief look around might be justified to check whether other persons were present, United States v. Agapito, ante, but they went further, and, at the least, searched Mr. Palumbo Sr.'s carry bag upstairs. The court also found that one officer conducted a limited search of the kitchen hutch. While this last might be justified as a safety check, the upstairs searching was not excusable.

We pass over the rest of the evening. The Palumbos ultimately were allowed to leave after a search of what they elected to take with them. We need not address the propriety of these searches, except to note them presumably consistent with the goal of preserving evidence. Perhaps fortunately for the...

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