U.S. v. Curry, s. 83-1662

• Decision Date: 26 December 1984
• Docket Number: Nos. 83-1662,83-1664 and 83-1665,s. 83-1662
• Citation: 751 F.2d 442
• Parties: UNITED STATES, Appellee, v. James CURRY, Defendant, Appellant. UNITED STATES, Appellee, v. Frederick R. SILVESTRI, Sr., Defendant, Appellant. UNITED STATES, Appellee, v. Frederick SILVESTRI, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 442

751 F.2d 442

UNITED STATES, Appellee, v. James CURRY, Defendant, Appellant.

UNITED STATES, Appellee, v. Frederick R. SILVESTRI, Sr., Defendant, Appellant.

UNITED STATES, Appellee, v. Frederick SILVESTRI, Jr., Defendant, Appellant.

Nos. 83-1662, 83-1664 and 83-1665.

United States Court of Appeals, First Circuit.

Argued Aug. 6, 1984.

Decided Dec. 26, 1984.

Ronald J. Chisholm, Boston, Mass., for defendant, appellant James curry.

Anthony A. McManus, Dover, N.H., with whom Burns, Bryant, Hinchey, Cox & Shea, Dover, N.H., were on brief, for defendant, appellant Frederick R. Silvestri, Sr.

Michael R. Pizziferri, Boston, Mass., for defendant, appellant Frederick Silvestri, Jr.

Sydney Hanlon, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, ^* District Judge.

BOWNES, Circuit Judge.

In this narcotics conspiracy appeal, three of six original defendants urge that the district court erred in denying motions to suppress evidence seized from their private residences. Each of the three appellants, James Curry, Frederick Silvestri the elder (Silvestri, Sr.) and Frederick Silvestri the son (Silvestri, Jr.) was indicted for conspiracy to possess with intent to distribute, and possession with intent to distribute, more than 1000 pounds of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1), (b)(6) and Sec. 846. Curry claims that his hotel room was entered without a warrant in violation of the principles outlined in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Both Silvestris claim that the warrantless entry and "securing" of their homes pending application for and arrival of a search warrant was violative of their fourth amendment rights. Silvestri, Jr. additionally urges that the police lacked probable cause to arrest him. All appellants waived a jury trial and were tried on stipulated facts. Because the factual background is complicated, we provide initially only an outline of the events which led to the contested seizures. Greater detail will be provided in the discussion of the issues.

I. FACTUAL BACKGROUND

In April 1983, Massachusetts State Police began court-ordered wire interceptions of two private residence telephones. These wiretaps provided information that led the police to believe Silvestri, Jr. and another codefendant, Anthony Rossi, who did not appeal, were involved in narcotics trafficking and that they were leaving town to obtain a shipment of drugs. Surveillance provided some corroboration of these suspicions. On Wednesday, April 28, 1982, at 3:15 a.m., a large rented Jartran truck arrived at Rossi's home, and later that same day it was moved to New Durham, New Hampshire, to property owned by Silvestri, Sr. Two residences were located on this property and the entire property was placed under surveillance. It was later found that Silvestri, Sr. and his family made their home in the single family dwelling, and Dianne Silvestri, Silvestri, Jr.'s estranged spouse, resided in an apartment over the garage/barn.

On Thursday morning, April 29, at 3:00 a.m., two pickup trucks arrived initiating a flurry of activity. Lights flashed on and people were seen on the grounds, although no identifications were possible. The record does not indicate whether persons emerged from both residences, or only one. That afternoon, Silvestri, Sr. left the property and was tailed by police as he drove to Alton, New Hampshire. There he met James Curry, Joseph DiPersia, and Frances Petrone, all of whom were later charged as codefendants in the conspiracy. After a forty-minute discussion at a bar, the four men returned to the Silvestri property in New Durham, with Curry a passenger in Silvestri, Sr.'s car and the other two men in a white Pontiac.

Later that same evening, it appeared to police that the Jartran truck previously seen at Rossi's was being loaded at the Silvestri property. The truck thereafter left the Silvestri property with Rossi and Silvestri, Jr. in the cab. The white Pontiac followed the truck with all the men who had met in Alton earlier that day except for Silvestri, Sr. Upon arrival at the Leominster, Massachusetts Holiday Inn, all five men went inside.

At approximately 10:00 p.m., Sergeant Brown of the New Hampshire State Police walked to the rear of the Jartran truck and recognized the odor of marijuana. Other officers on the scene confirmed that the truck smelled of marijuana. A few minutes later, Petrone emerged from the Holiday Inn and moved the truck. He was then followed by the police to Room 124 of the hotel. Male voices could be heard inside the room from the hallway.

Four men left the hotel at approximately 11:00 p.m. and moved the white Pontiac immediately next to the Jartran truck. They gathered at the trunk of the car and were observed talking, and then the four drove off in the Pontiac. The car was stopped a short distance away and the occupants, later identified as Silvestri, Jr., Rossi, DiPersia, and Petrone, were arrested.

Approximately two hours later, at 1:00 a.m., officers from the New Hampshire and Massachusetts State Police forces went to Room 124 of the Holiday Inn and arrested James Curry. Sergeant Brown, who had surveilled the meeting in Alton, recognized Curry as one of the men at that meeting when he joined the others three to five minutes after the entry was made. The officers, upon entering, detected the odor of burning or burnt marijuana inside the room and they observed an open briefcase. The briefcase was seized and held pending authorization of a search warrant.

At 9:30 a.m. that same morning (April 30), Massachusetts State Police executed a search warrant for the Jartran truck in the Holiday Inn parking lot. They found 102 bales of marijuana. A search warrant was also issued for the white Pontiac, and two blocks of hashish, a prescription bottle with the name of Frederick Silvestri, and a small amount of marijuana were seized.

After Curry was arrested in Leominster, but before the Massachusetts search warrants were executed for the truck and briefcase, the New Hampshire State Police entered and "secured" the Silvestri residences pending application for and arrival of a search warrant. This warrantless entry occurred at approximately 3:00 a.m. The search warrant arrived at 11:30 a.m. The police seized 99 bales of marijuana in the garage/barn, a truck registered to Silvestri, Sr. containing 1489 pounds of hashish (estimated street value of $1.75 million), and a ledger listing bales of marijuana which corresponded to the marked bales discovered in both the Jartran truck and the Silvestri garage, and identical to a ledger later discovered in Curry's briefcase. The officers also seized tide charts, a passport belonging to Silvestri, Jr. and a small amount of marijuana from the residence of Dianne Silvestri. A search of Silvestri, Sr.'s home yielded another block of hashish. Before his arraignment, Silvestri, Sr. is alleged to have admitted that he had driven one of the pickup trucks bringing in the "dope" and that he had helped to off-load some of the bales.

II. CURRY'S APPEAL

Curry presents two interrelated issues for review: whether the district court erred in ruling that the police had sufficient probable cause to make either a warrantless arrest or a warrantless search of his hotel room, and whether the police had probable cause to search his briefcase. He claims that insufficient evidence was before the district court for these rulings to be made. The relief Curry requests is a remand for rehearing and appropriate findings regarding the circumstances under which police entry was made into his hotel room. Contrary to the Government's position, we find that these issues were adequately raised below and are not on that basis barred from review.

As noted, Curry stipulated to certain facts and thereafter was convicted at a bench trial. These stipulations, which the Government cosigned, included the following:

On April 30, 1982, at approximately 1:00 a.m., Sergeant James Jajuga and Corporal Henry Carpenito went to Room 124 of the Holiday Inn, Leominster, and arrested James H. Curry. Sergeant Brown went to secure the back and joined the others 3-5 minutes later. Curry was the same man whom Sgt. Brown had observed in Alton, New Hampshire with Frederick Silvestri, Sr. The officers, upon entering, detected a strong odor of burning or burnt marijuana inside the room, and they observed an open briefcase. The briefcase was seized and held pending execution of a search warrant. [Emphasis added.]

The district court found that "[w]hen Sergeants Jajuga and Brown knocked on the door of Room 124, a man answered. Sergeant Brown recognized the man as one of the people who met Silvestri, Sr. at the pub in Alton, New Hampshire" (emphasis added). Nothing in the record of Curry's case supports the court's findings that after the police knocked, the door was voluntarily opened, and that Sergeant Brown was in the original group when Curry's room was entered. These findings were clearly erroneous. ¹

And they were not harmless error. Curry contends that he did not consent to the police entry and that his room was forcibly entered with no authorization via a warrant. Moreover, it is not clear that adequate probable cause existed to justify an arrest of the occupant of Room 124 or to search the room prior to the identification of Curry by Sergeant Brown three to five minutes after the entry by the other officers.

The district court specifically declined to hold an evidentiary hearing as requested by Curry. We are, therefore, faced with a blank record on critical issues. We do not know whether, after the police officers knocked on the door of Room 124 ², the door was voluntarily opened or whether the police forcibly entered. If the latter, we do not know whether they sought to make a warrantless search, to secure the...