867 F.2d 36 (1st Cir. 1989), 88-1893, United States v. Curzi

Docket Nº:88-1893.
Citation:867 F.2d 36
Party Name:UNITED STATES of America, Appellant, v. Barbara J. CURZI, Defendant, Appellee.
Case Date:January 30, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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867 F.2d 36 (1st Cir. 1989)

UNITED STATES of America, Appellant,

v.

Barbara J. CURZI, Defendant, Appellee.

No. 88-1893.

United States Court of Appeals, First Circuit

January 30, 1989

Heard Nov. 1, 1988.

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Michael K. Loucks, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., and David L. Douglass, Asst. U.S. Atty., were on brief, for appellant.

Linda J. Thompson, with whom, Thompson, Thompson & Jacobson, was on brief, for appellee.

Before BOWNES, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Barbara Curzi-Laaman (Curzi), defendant-appellee, asked the United States District Court for the District of Massachusetts to suppress certain evidence. The district court obliged. 1 United States v. Levasseur, 699 F.Supp. 995 (D.Mass.1988) (D.Ct.Op.). The United States appeals pursuant to 18 U.S.C. Sec. 3731.

I. BACKGROUND

There is surprisingly little dispute concerning the salient facts. We summarize them at this juncture, referring the reader with broader interests to our earlier opinion regarding the same indictment. See United States v. Levasseur, 846 F.2d 786 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 232, 102 L.Ed.2d 222 (1988).

The evidence which the district court suppressed was seized from Curzi's home in November 1984. At that time, she was thought to be a member of a terrorist cabal which had claimed responsibility for a series of bombings--but no charges were pending against her. Federal warrants were outstanding for several other alleged gang members: Jaan Laaman (appellee's spouse), Richard Williams, Raymond Levasseur, Thomas Manning, and Carol Manning. These persons were wanted, variously, on charges of interstate flight to avoid prosecution for murder and-or attempted murder, bank robbery, and the like. A flyer issued by the Federal Bureau of Investigation (FBI) warned that the group was "known to use automatic weapons" and that its members were "considered ... extremely dangerous."

In the course of an ongoing manhunt for the terrorists, the FBI spotted Patricia Gros, another suspected gang member. Agents tracked her to a dwelling in Deerfield,

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Ohio which she shared with Levasseur. Surveillance was established. Agents saw Williams leave the Gros/Levasseur residence in his car on the evening of November 3, 1984. He was followed to Cleveland and trailed to the "4200 block" on West 22d Street. Although the agents did not see which building Williams entered, they cordoned off the entire block during the night. A cadre of law enforcement officers was assembled, including SWAT teams from as far away as Pittsburgh.

Early on the morning of November 4, the FBI received a telephone-trace report which showed that Williams, while en route to Cleveland, had called 4248 W. 22d St. At this point--approximately 8:00 a.m.--official attention focused on the single family home at that address. The surrounding houses were evacuated and more than 35 officers, all armed and many clad in bullet-proof vests, took their places. Roughly half an hour later, at about 8:30 a.m., Williams's hideaway was precisely confirmed: agents saw him leave the house, retrieve something from his parked car, and reenter the premises. The dragnet remained in place. No endeavor was made to procure a search warrant, but there was an attempt to ascertain the homeowner's identity. The agents were able to learn that the telephone number which Williams had called was listed to one Lisa Owens. The name meant nothing to the FBI; the agents could not connect it with the gang or with any criminal activity. They remained completely in the dark as to whether anyone other than Williams was on the premises.

By 10:15 a.m., there had been no material change in circumstances. The FBI chose that moment, however, to escalate the drama into its next stage. An agent telephoned Owens's number and ordered the "occupants"--whoever they might prove to be--to exit. After a short delay, during which several more orders were issued, three children debouched; Williams, Curzi, and Laaman soon followed. The adults were immediately arrested (the two men on outstanding warrants; appellee on a charge of harboring). Without pausing, the agents entered the dwelling and carried out a security check. They found guns and explosives in plain sight. Later, the FBI obtained a warrant authorizing a full-scale search of the premises. The underlying affidavit relied heavily upon Laaman's arrest outside the house and the items discovered in the course of the protective sweep.

In May 1986, appellee and her alleged fellow gang members were indicted on various charges of racketeering and conspiracy. See United States v. Levasseur, 846 F.2d at 791. The defendants, Curzi included, filed pretrial motions to suppress the evidence seized from 4248 W. 22d St. The district court ruled that Curzi had standing to object to the search and seizure, D.Ct.Op. at 999; that "the order to evacuate the house ... constitu[ted] a search," id. at 999; that the order was not buttressed by exigent circumstances, ergo, illegal, id. at 999-1000; and that, absent the tainted fruits of the invalid exit order, the warrantless protective sweep was also unlawful. Id. at 1000-02 & nn. 5-6. The court held the later, warrant-backed search to be illegitimate as well: "The problem with this latter search is that the government's affidavit, shorn of the unlawfully obtained information, fails to establish a sufficient nexus between the items to be seized and the place to be searched." Id. at 1001. Accordingly, the district court allowed the motion to suppress evidence seized at 4248 W. 22d St. as to appellee. Id. at 1008.

It is against this backdrop that we canvass the record and the applicable law in order appropriately to address the questions posed. Notwithstanding that we differ from the district court in our approach to the problem, we affirm the order excluding the evidence. On this appeal, all roads lead to Rome.

II. THE OFFICERS' CONDUCT

We review what we believe to be the controlling Supreme Court precedent, and then proceed to evaluate the officers' conduct in that light.

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A.

Any reasoned analysis of the issues presented on appeal must begin with the Supreme Court's opinion in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). There, federal agents, following a tip from a confidential informant, used a telephone number to locate an address where a fugitive (Lyons) was reported to be staying. Two days later, with an arrest warrant for Lyons in hand (but no search warrant), the agents went to the locus. They encountered Steagald and another man in front of the building, frisked them, and determined that neither man was Lyons. The agents thereupon entered the building (Steagald's home) and searched it without consent. The fugitive was not found, but drugs were spotted. Steagald was charged in connection with possession of the contraband. Id. at 206-07, 101 S.Ct. at 1644-45. The Court held that the search violated defendant's fourth amendment rights. Id. at 216, 101 S.Ct. at 1650. The evidence was, therefore, suppressed.

In Steagald, the Court ruled that obtaining an arrest warrant for A was not sufficient to authorize B's home to be entered and searched in the course of effecting A's apprehension. In other words, the arrest warrant was inadequate protection for the privacy rights of a resident not named therein. 451 U.S. at 213, 101 S.Ct. at 1648. The Court deemed the intervention of a neutral judicial officer absolutely necessary to guard against "a significant potential for abuse." Id. at 215, 101 S.Ct. at 1649. Absent such a requirement, "[a]rmed solely with an arrest warrant for a single person, the police could search all the homes of that individual's friends and acquaintances." Id. Thus, apart from consent or exigent circumstances, Steagald requires a search warrant before one's home can be searched for a third person who is the subject of an arrest warrant. Id. at 213-14, 101 S.Ct. at 1648.

Steagald, we believe, controls. To be sure, the cases are not on all fours. Here, unlike in Steagald, the agents gave an order to exit before entering the home; and, in contrast to a full-blown search, they performed only a protective sweep. 2 Yet the overpowering similarity between the cases stems from the fact that the only warrant which the agents possessed was for a third person's arrest. 3 It is no answer to say that the agents had probable cause to believe Williams was inside the dwelling; Steagald requires not only probable cause that the subject of the arrest warrant is within the place to be invaded, but also that a neutral judicial officer make this determination and issue a search warrant. No such protocol was followed here.

B.

Before us, the government employs a divide-and-conquer strategy. It splits the

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conduct of the officers into two segments. The first part of the proposition focuses only on the order to evacuate the premises; that order, appellant says, was neither a search nor a seizure, and thus required no warrant. The second part of the proposition is then brought to bear: once three members of the terrorist band had emerged, the known presence of demonstrably dangerous suspects rendered it reasonable to conduct a protective sweep of the premises, especially because a supportable inference that Laaman and Curzi were in residence arose at that time. To a point, the district court played the government's game; it accepted the segmentation, but proceeded to rule that each component was illegal. See, e.g., D.Ct.Op. at 1000 (order to exit "effectively and practically constituted a search ... and ... was unlawful"); id. at 1001 (protective sweep unlawful).

This approach, we think, ignores the stark reality...

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