US v. Acosta, Crim. A. No. 91-00323-01 through 91-00323-03.
| Citation | 786 F. Supp. 494 |
| Decision Date | 21 February 1992 |
| Docket Number | Crim. A. No. 91-00323-01 through 91-00323-03. |
| Parties | UNITED STATES of America v. Jose ACOSTA, a/k/a "Jose Diaz" a/k/a "Agapito Velazquez", Manuel Acosta, Martha Ovalle, a/k/a "Dania Montesano". |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
L.C. Wright, Asst. U.S. Atty., for U.S.
Edward Daly, Richard Shore, Peter A. Levin, Howard D. Popper, Alan L. Yatvin, Philadelphia, Pa., for Acosta.
Defendants Jose Acosta, Manuel Acosta, and Martha Ovalle are charged with conspiracy to possess with the intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & 846, possession of cocaine and cocaine base with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting with the intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In addition Jose Acosta is charged with knowing and willful use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).
Presently before the Court are the pretrial motions of defendants Jose Acosta, Manuel Acosta, and Martha Ovalle to suppress evidence under Fed.R.Crim.P. 12(b)(3) and 41(f). The three defendants have submitted essentially identical motions to suppress: (1) the physical evidence found in the defendants' apartment and outside the bathroom window in the backyard of the defendants' apartment,1 and (2) evidence of the law enforcement officers' observations of the defendants and the apartment and any statements taken from the defendants subsequent to the law enforcement officers alleged illegal entry and search of defendants' apartment, on July 23, 1991. They contend all are the fruit of an illegal warrantless entry and search of their apartment.
The defendants contend that: (1) the warrantless search of defendants' residence was presumptively unreasonable and in violation of the Fourth Amendment;2 (2) the arrest warrant for a third person, Carlos Santiago, did not provide the law enforcement officers with authority to enter or search defendants' apartment since they did not possess a separate search warrant;3 (3) the search of defendant's apartment does not fall under the exigent circumstance exception to the Fourth Amendment's warrant requirement; (4) any exigent circumstances were unlawfully created by the law enforcement officers; and (5) the evidence seized pursuant to the search warrant executed on July 25, 1991, the law enforcement officers' observations of defendants and the apartment, and any statements taken from the defendants subsequent to the law enforcement officers' alleged illegal entry and search of defendants' apartment on July 23, 1991, are the fruit of the law enforcement officers' illegal conduct and therefore must be suppressed.
The government contends that: (1) the requirements of the exigent circumstance exception to the Fourth Amendment's warrant requirement are satisfied; (2) the exigent circumstances which arose in this case were not impermissibly created; (3) the evidence seized from outside the apartment window was "abandoned" and therefore were lawfully seized; and (4) the evidence seized from outside the bathroom window was lawfully seized pursuant to the plain view exception to the Fourth Amendment's warrant requirement.
The defendants' suppression motions raise the following issues which the Court will address: (1) whether exigent circumstances were present; (2) whether exigent circumstances were impermissibly created by the law enforcement officers because they: (a) entered the unlocked common hallway of defendants' multi-unit apartment building in an effort to execute an arrest warrant for Carlos Santiago;4 (b) improperly asserted authority to enter defendants' apartment by the way they knocked and announced themselves, and/or (c) entered the enclosed backyard of 522 West Venango Street in which defendants rented a first floor apartment in an effort to execute an arrest warrant for Carlos Santiago; (3) whether the evidence seized outside the bathroom window was "abandoned" by the defendants or lawfully seized pursuant to the plain view exception to the Fourth Amendment's warrant requirement; and (4) whether the evidence seized pursuant to a search warrant executed on July 25, 1991, evidence of the law enforcement officers' observations of defendants and the apartment, and any statements taken from the defendants subsequent to the law enforcement officers alleged illegal entry and search of defendants apartment, on July 23, 1991, should be suppressed as the fruit of the law enforcement officers' illegal conduct.
A suppression hearing was held on October 18, 1991 and October 25, 1991 on the issues raised by defendants' suppression motions.5 A supplemental suppression hearing was held on December 13, 1991 for the limited purpose of introducing evidence with respect to: (1) the question of the defendants' expectations of privacy in the backyard of the apartment house at 522 West Venango Street, Philadelphia, Pennsylvania, (Order, December 9, 1991); and (2) whether law enforcement officers entered the backyard area of the apartment house at 522 West Venango Street, Philadelphia, Pennsylvania, and if so, how they did so. (Order, December 4, 1991.)
This Court concludes that: (1) exigent circumstances were present, (2) the exigent circumstances were impermissibly created by the law enforcement officers because of the unlawful entry into the defendants' backyard but not by their entry into the common hallway or their method of knocking and announcing themselves, (3) the evidence seized from outside the defendants' bathroom window was neither abandoned nor lawfully seized pursuant to the plain view exception to the warrant requirement of the Fourth Amendment; and (4) the fruit of the police officers' unlawful conduct, including the evidence seized pursuant to the execution of the July 25, 1991, search warrant for Defendants' apartment, will be suppressed. Accordingly, defendants' suppression motions will be granted.
On July 23, 1991, at 6:00 A.M., agents of the Drug Enforcement Agency (hereafter "DEA"), deputy U.S. Marshals, and Philadelphia police officers6 went to 522 West Venango Street, Philadelphia, Pennsylvania. (Tr., October 25, 1991, at 40-41; Ex. D-1, at ¶ 3.) These officers possessed an arrest warrant for Carlos Santiago. (Tr., October 25, 1991, at 41.) The arrest warrant did not contain an address for execution. (Ex. G-1; Tr., October 25, 1991, at 43-44.) However, the warrant was accompanied by an envelope on which there was written three possible addresses, including the 522 West Venango Street address. (Ex. G-2.) Special Agent Allen was told by his superior, William Renton, that 522 West Venango Street was Carlos Santiago's "primary" address. (Tr., October 25, 1991, at 162.)
Upon arriving at 522 West Venango Street, the team realized for the first time that the building was a three story apartment building with three separately secured apartments. (Ex. G-5; Tr., October 25, 1991, at 67.) Prior to entering the apartment building, Special Agent Allen, with the "consensus" of the other Team members, reached the "decision to start with the first floor apartment and work upward if necessary." (Ex. D-1, at ¶ 3; Tr., October 25, 1991, at 67.) Special Agent Allen then directed Special Agent Barry DeProsperis and Deputy Marshal Michael Burke "to go around and cover the rear in case somebody Carlos Santiago tried to, you know, come out of the window in back or come out a back door." (Tr., October 25, 1991, at 73.)
Pursuant to that instruction, Special Agent DeProsperis proceeded to the rear of the building and entered the fenced backyard by scaling the fence which enclosed it.7 (Tr., December 13, 1991, at 43.) He then took a position in the yard so that he would be in the "best position ... to see the windows, the side of the building, the door in the back and the windows on the other side of the building." (Tr., December 13, 1991, at 46.)
In an effort to enter the apartment building Special Agent Allen rang the bell at the outer doorway. (Tr., October 25, 1991, at 73-74.) When this was unsuccessful, one of the Team members turned the doorknob of the outer door and discovered that the door was unlocked. (Tr., October 25, 1991, at 74.) The Team members then proceeded to the only first floor apartment. (Ex. G-6; Tr., October 25, 1991, at 75.) Special Agent Allen knocked on the apartment door and said several times "it's the police; open the door ... I have a warrant; open the door." (Tr., October 25, 1991, at 76-77.) Finally, an occupant inside asked Special Agent Allen, who was at the door. (Tr., October 25, 1991, at 77.) Special Agent Allen responded by repeating what he had just said. (Tr., October 25, 1991, at 77.) Following that Special Agent Allen heard "scuffling noises," a "commotion going on in the apartment," and a "flushing noise",8 (Tr., October 25, 1991, at 77), all from inside the apartment. At about the same time, he heard Special Agent DeProsperis, whom he had directed to the rear of the apartment building, (Tr., October 25, 1991, at 73), shout that "they were throwing stuff out the window," (Tr., October 25, 1991, at 77), and that he thought somebody was coming out the window. (Tr., October, 25 1991, at 172.) Special Agent Allen "assumed" that Special Agent DeProsperis was shouting about a window in the first floor apartment, (Tr., October, 25, 1991, at 176), and knew that the term "stuff" meant narcotics as that was a term of art in the narcotics trade, (Tr., October 25, 1991, at 123); so he and Police Officer William Jeitner kicked the defendants' apartment door down.9 (Tr., October 25, 1991, at 77.)
Immediately after breaking the door down, Special Agent Allen saw Jose Acosta in the living room, just outside the doorway leading to the...
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U.S. v. Acosta
...would grant defendants' motions to suppress based on its conclusion that the search violated defendants' Fourth Amendment rights. 786 F.Supp. 494 (E.D.Pa.1992). The government appeals. The district court had jurisdiction under 18 U.S.C. § 3231, while we have jurisdiction pursuant to 18 U.S.......