787 F.2d 736 (1st Cir. 1986), 85-1534, United States v. Silvestri

Docket Nº:85-1534.
Citation:787 F.2d 736
Party Name:UNITED STATES of America, Appellee, v. Frederick SILVESTRI, Elder, Defendant, Appellant.
Case Date:April 01, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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787 F.2d 736 (1st Cir. 1986)

UNITED STATES of America, Appellee,


Frederick SILVESTRI, Elder, Defendant, Appellant.

No. 85-1534.

United States Court of Appeals, First Circuit

April 1, 1986

Argued Jan. 10, 1986.

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Anthony A. McManus, Dover, N.H., for defendant, appellant.

Mitchell D. Dembin, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before BOWNES, ALDRICH and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

This is the second time this search and seizure case has been considered by us. Our first opinion, United States v. Curry, 751 F.2d 442 (1st Cir.1984), remanded three matters to the district court for further proceedings, two of which are relevant to this case. We asked the district court to determine whether there were any items introduced into evidence which were in plain view prior to the arrival of the search warrant and, if so, to specify them. Because of a conflation in the search warrant affidavit of the activities of Frederick Silvestri, Sr., and his son, Frederick Silvestri, Jr., we also directed the district court to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

The district court found that there were no plain-view items introduced in evidence. It also found that, under the inevitable discovery exception to the exclusionary rule, evidence not in plain view but seen prior to the arrival of the search warrant was admissible.

After holding a Franks v. Delaware hearing, the district court ruled that the search warrant was valid.

Both rulings have been appealed.


Sometime between 3:00 and 3:30 a.m. on April 30, 1982, New Hampshire State Police Officers entered and secured property owned by defendant-appellant Frederick Silvestri, Sr., in New Durham, New Hampshire, pending the arrival of a search warrant. The officers had been told by other police officers that there was reason to believe that large quantities of marijuana were present on the property and that they should secure the premises. There were two buildings on the property: a single family dwelling occupied by defendant and an apartment over a garage occupied by his son's estranged wife. All occupants of the residences were awakened and the police fanned out through the dwellings to ensure that no other persons were inside. Sometime prior to the arrival of the search warrant, Sergeant DuBois asked defendant, who was being detained, if the garage was open. Upon learning that the garage was locked, DuBois asked for the key and defendant provided it. Sergeant DuBois unlocked the garage and looked inside; he saw many bales of marijuana and blocks of

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hashish. Sergeant DuBois then called the state police barracks in Epping, New Hampshire, and reported that he had found the garage full of marijuana. A search warrant was ultimately obtained and arrived in New Durham at 11:30 that morning. 1 At that time, the police seized 99 bales of marijuana from the garage, a truck registered to defendant containing 1489 pounds of hashish, a block of hashish in his house, and various documents.

In its original opinion, the district court held that the warrantless entry upon the property in New Durham was "illegal and inexcusable" and could not be justified by exigent circumstances. Curry, 751 F.2d 447. This holding was not disturbed by our remand opinion. What is at issue now is the admissibility of the hashish and marijuana found in the garage. Defendant claims that since this evidence was seen by Sergeant DuBois prior to the issuance and arrival of the search warrant, it was illegally seized and must be suppressed. In our remand opinion, we noted that while the Supreme Court had recently held that evidence first observed under a valid search warrant was not tainted by a prior illegal entry, it had left open the question of whether evidence observed during the illegal entry was required to be suppressed. Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). The Second Circuit, in a holding not appealed to the Supreme Court, had held in Segura that evidence discovered in plain view during the initial illegal entry must be suppressed. United States v. Segura, 663 F.2d 411, 417 (2d Cir.1981). The district court had not distinguished between evidence observed prior to the warrant and evidence first observed after the arrival of the warrant in denying defendant's suppression motion and we, therefore, remanded the case back to the district court for a determination as to what, if any, of the evidence introduced against defendant was "in plain view" during the initial illegal entry.

Upon remand, the district court found that the only evidence not found pursuant to the warranted search was the marijuana and hashish found in the garage, and that this evidence was not in plain view. The district court went on to hold that under the inevitable discovery exception to the exclusionary rule endorsed by the Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), this evidence should not be suppressed. It found that the two preconditions to the application of the inevitable discovery exception were present: the evidence would inevitably have been discovered by a lawful means, viz, the warrant, and the lawful means were in progress at the time the evidence was found, viz, the preparation of a warrant application.

Defendant argues against the district court's application of the inevitable discovery rule. He first contends that the inevitable discovery rule should not be applied here at all. In the alternative, he contends that if Nix does apply, it requires that the legal means for finding the illegally discovered evidence be in process at the time of the discovery. He argues that this requirement was not met here because, contrary to the district court's finding, the warrant application process had not in fact been initiated at the time of the illegal discovery.

Whether or not the district court properly applied the inevitable discovery rule requires first an examination of this circuit's recent opinion in United States v. Moscatiello, 771 F.2d 589 (1st Cir.1985). In that case, we applied the independent source exception to the exclusionary rule to permit the admission of evidence found in substantially similar circumstances to those here. In Moscatiello, we assumed for the purposes of the opinion that a warrantless entry into a warehouse by police officers which resulted in the observation of numerous bales of marijuana was not justified by

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exigent circumstances. Subsequent to this entry, a warrant was sought and executed. Focusing upon the reasoning in the Supreme Court's opinion in Segura which found that a search warrant issued subsequent to an illegal entry served as an "independent" and untainted source for the evidence first observed during the warranted search, we reasoned that the subsequently obtained warrant could also serve as an "independent justification" for the evidence first observed during the illegal search. Moscatiello, 771 F.2d at 603. We held that the initial discovery of the evidence in no way tainted the issuance of the warrant or rediscovery of the evidence pursuant to the warrant. Id. We noted that while the majority opinion in Segura suggested that suppression of evidence first obtained during an illegal prewarrant entry was a possible consequence of such entry, the dissenters pointed out that if the warrant is an independent source for evidence seen subsequent to an illegal entry, then logically it would also be an independent source for evidence seen during the illegal entry. Id. We concluded that because the warrant was clearly independent of the legal entry, it could serve as an independent source for the evidence first discovered during the illegal entry. Id.

In light of the analysis in Moscatiello, we think it necessary to distinguish those situations in which application of the "independent source" exception to the exclusionary rule, as opposed to the "inevitable discovery" exception, is appropriate. As the Supreme Court pointed out in Nix, the "independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." Nix, 467 U.S. at 443, 104 S.Ct. at 2509 (emphasis added). The independent source doctrine did not apply in Nix, however, because the evidence was in fact discovered by illegal means. Id. Now, we must ask which is the proper analysis to apply when evidence is discovered as the result of either an illegal entry or search of premises for which a legal search warrant eventually issues? This will depend upon whether the evidence first observed illegally can be considered to be cleanly "rediscovered" when the warrant is executed. In the classic independent source situation...

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