846 F.2d 1439 (D.C. Cir. 1988), 87-3053, U.S. v. Socey

Docket Nº:87-3053.
Citation:846 F.2d 1439
Party Name:UNITED STATES of America, Appellant, v. Robert SOCEY and Daniel Socey, Appellees.
Case Date:May 13, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1439

846 F.2d 1439 (D.C. Cir. 1988)

UNITED STATES of America, Appellant,

v.

Robert SOCEY and Daniel Socey, Appellees.

No. 87-3053.

United States Court of Appeals, District of Columbia Circuit.

May 13, 1988

Page 1440

Argued Feb. 12, 1988.

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Appeal from the United States District Court for the District of columbia

(Criminal Action No. 87-00182-01).

Sharon A. Sprague, Asst. U.S. Atty., with whom, Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Helen M. Bollwerk and Betty Ann Soiefer, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

Jeffrey S. Jacobovitz, (appointed by this Court) and Christopher Howell, Washington, D.C., of the Bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of the Court, for appellees.

Before ROBINSON and D.H. GINSBURG, Circuit Judges, and BOGGS [*] , Circuit Judge, United States Court of Appeals for the Sixth Circuit.

Opinion for the Court filed by Circuit Judge BOGGS.

BOGGS, Circuit Judge:

Appellees Robert and Daniel Socey were indicted on various drug-related offenses 1 and on one count of possessing an unregistered firearm, D.C.Code Ann. Sec. 6-2311(a) (1981). Before trial, the district court granted the Soceys' motion to suppress evidence which was in plain view during a warrantless entry and "securing" of their house in the District of Columbia. The United States has taken an interlocutory appeal, pursuant to 18 U.S.C. Sec. 3731 (1982), arguing that the entry into the Socey home was justified by exigent circumstances because police officers feared the imminent destruction of evidence. Alternatively, the government contends that, even were the warrantless entry to secure the premises unjustified, the evidence in plain view was admissible under either the inevitable discovery rule or the independent source rule. Finding merit to the first contention, we reverse the district court's suppression order.

I

In January 1987, Detective John Centrella of the Metropolitan Police Department received information from an informant, designated C-1, that Robert Socey was a major distributor of cocaine and marijuana in Maryland, Virginia and the District of Columbia for a Vincent Soper. On the basis of this information, Centrella purchased cocaine from members of the Socey organization on three occasions, one of which occurred at Robert Socey's home at 4132 Military Road in Northwest Washington, D.C.

The informant told Centrella that Robert Socey and others had travelled to Florida on several occasions in the past year to purchase cocaine for distribution in the District of Columbia. According to C-1, Robert Socey would use couriers or "mules" from a Cuban cocaine organization in Florida to transport kilogram quantities of cocaine to the Socey residence on Military Road.

On March 16, 1987, C-1 advised Centrella that Robert Socey and Soper had recently

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travelled to Florida to purchase drugs, and were staying at the Surrey House in Miami Beach. Receiving information that Soper had travelled by automobile, Centrella asked the Miami Beach Police Department to check for an automobile bearing District of Columbia, Virginia or Maryland tags parked at the Surrey House. Miami Beach police reported that a Datsun with District of Columbia tag number 227-987 was parked at the hotel in question. A computer check of the tag number revealed the car was listed to Vincent Soper. This information confirmed an earlier report by C-1 that Soper owned a brown Datsun, which the informant averred Soper frequently used to transport cocaine and marijuana from Florida to Robert Socey's residence.

On March 22, 1987, C-1 informed Centrella that Robert Socey and Soper would be leaving Florida sometime the next day, heading back to Socey's house, with a large amount of cocaine and possibly marijuana. They would be driving Soper's brown Datsun, with registration tag number 227-987. Centrella verified this information by calling the Surrey House, which reported that Soper and Robert Socey had checked out of their respective rooms.

After receiving this confirmation, Centrella began watching the Socey home on Military Road. On March 25, 1987, at approximately 10:00 a.m., he first spotted Soper's brown Datsun parked in front of the Socey house. Centrella immediately called his office and requested additional officers to maintain a watch of the house and the Datsun. He then maintained surveillance until reinforcements arrived.

About noon, Centrella was relieved by Detectives Donald Zattau, Joe Brenner and David Hayes. Before departing to secure a warrant, Centrella instructed Zattau to stop Soper's automobile if it should leave the area.

During the next five hours, the detectives observed two or three people arrive and enter the house and one person leave the premises. At approximately 4:45 p.m. that afternoon, Soper arrived by taxi and entered the Socey home. A short time later, he left carrying two large trash bags. Soper walked by a dumpster and placed the bags into the trunk of his Datsun. He then returned to the house and made a second trip to his car with another trash bag. After briefly talking with Robert Socey's mother, Soper drove away.

Believing Soper was transporting narcotics, Zattau and Hayes pursued the vehicle, leaving Brenner to watch the house. When the Datsun was beyond view of the Socey residence, the detectives stopped the car and arrested Soper. They searched the Datsun and found 24 pounds of marijuana, scales and packaging materials in the trunk. A small amount of the drug and $5,000 in cash were also found on Soper.

After Soper was arrested, Zattau and Hayes returned to Military Road. By this time, Brenner had stopped another automobile, a Camaro, as it left the Socey residence. The vehicle was detained at the end of the block, but in view of the Socey house. Two marked police cars arrived and assisted Brenner; neighbors began to congregate to view the situation.

Zattau and Hayes feared that the commotion would alert those in the house to the police presence. They decided to enter the residence and "secure" the premises to ensure that evidence would not be destroyed. At the suppression hearing, Zattau testified that, at this time, he believed the search warrant had already been signed and was en route to the scene. 2 He was mistaken. A warrant was not issued until fifteen or twenty minutes after the officers had entered and secured the house. 3

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Zattau and Hayes, along with two uniformed officers, approached the Socey house and identified themselves as police officers. When the door was opened, Hayes went directly upstairs, followed by a uniformed officer. Zattau secured the first floor by ushering all the people on that level toward the dining room table; he told the occupants that he had a warrant. Hayes entered Daniel Socey's room, where he observed Robert and Daniel Socey and a third person shaving marijuana off of large bales, weighing the drug and bagging it. They were arrested. The uniformed officer who had accompanied Hayes upstairs looked into Robert Socey's room and observed a shotgun, a blue duffel bag and a pile of marijuana on a dresser.

By this time, a search team had arrived, but they and the officers already on the scene were instructed not to search the premises without a warrant. Shortly thereafter, Centrella called the officers and communicated to them that a warrant had been issued and a search could proceed. When he arrived at the Socey home around 7:00 p.m. with the warrant, a full search was already in progress.

Before trial, Robert and Daniel Socey moved to suppress the evidence in plain view during the warrantless "securing" of their house, as well as the items seized pursuant to the warrant. In response, the government asserted that the entry into the Socey home was justified by exigent circumstances because the officers feared the occupants, alerted by the commotion outside, would become aware of the police presence and destroy evidence. Alternatively, the government argued that, even were the warrantless entry to secure the premises unjustified, the evidence was admissible under either the inevitable discovery rule, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), or the independent source rule, Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

Finding the entry to be unjustified, the district court granted the Soceys' motion in part, suppressing the evidence in plain view 4 of the "securing" officers, but admitting the evidence "first seen and seized by the search team" after the warrant had been issued. The court first rejected the government's contention that exigent circumstances excused the need for a warrant. The court said:

The police explanation of the circumstances surrounding the entry satisfies the prosecution's burden to show probable cause. The police were entitled to a warrant, and in time, obtained one. But the circumstances do not justify the entry to secure the premises before a warrant had been signed. This was a residence, not a moving vehicle that was entered. Compare Payton v...

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