Grimaldi v. U.S.

• Decision Date: 26 November 1979
• Docket Number: No. 78-1392,78-1392
• Parties: Joseph J. GRIMALDI, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 332

606 F.2d 332

Joseph J. GRIMALDI, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.

No. 78-1392.

United States Court of Appeals First Circuit.

Argued May 7, 1979.

Decided Sept. 19, 1979.

Certiorari Denied Nov. 26, 1979.

See 100 S.Ct. 465.

Francis J. Scannell, Boston, Mass., by appointment of the court, for appellant.

Paul F. Healy, Jr., Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, MURRAY, Senior District Judge. ^*

FRANK J. MURRAY, Senior District Judge.

Defendant-appellant, Joseph J. Grimaldi, appeals from his convictions on August 3, 1978 of counterfeiting Federal Reserve notes in violation of 18 U.S.C. § 471, and related crimes ¹ in violation of 18 U.S.C § 474, on nine counts of a ten-count indictment. We affirm the convictions.

On February 23, 1978, Special Agents of the United States Secret Service (Agents), armed with a search warrant issued that day by a United States Magistrate, seized items of property in Grimaldi's residence at 28 Brighton Street, Springfield, Massachusetts, and arrested him. Grimaldi moved to suppress as evidence against him at the trial all property seized pursuant to the warrant, on the ground that the Agents had conducted an illegal search of his residence on January 31, 1978 and thus the property seized under the warrant was tainted by the prior illegal intrusion.

On January 31 the Agents met Grimaldi at the office of the Massachusetts Parole Board in Springfield. Grimaldi was then subject to Massachusetts parole supervision, and the meeting was arranged by Grimaldi's parole officer at the behest of the Agents. Prior to the meeting the Agents had been assigned to investigate counterfeiting activities in Springfield involving the passing of numerous counterfeit notes (each designated as C-'6420'), all similar in details and characteristics. The Agents were aware that Grimaldi had purchased printing equipment in August 1977, before the counterfeit notes appeared, and that in November 1977 the New York City police had found certain paraphernalia in a refuse dump in the Bronx apparently related to the manufacture of the notes that had surfaced in Springfield. They knew also that Grimaldi had avoided a confrontation at his home with Detective Meara of the Springfield police on January 26, 1978. At the Parole Board office, the Agents engaged Grimaldi in a discussion of his activities, and persuaded him to permit them to visit his home. At his home they made observations in his cellar of certain equipment and books, and as they departed the dwelling they persuaded Grimaldi to let them take a book entitled "Donlon Catalog of United States Small Size Paper Money" and a can of red ink with green stains on the outside of the can. Later, one of the Agents secured information of Grimaldi's book borrowing record from the Springfield Public Library.

The district court held an evidentiary hearing on the motion to suppress, and found that the Agents had coerced Grimaldi to make certain incriminating statements and permit them to enter his home. An order was entered by the court allowing the motion to the extent of excluding from the evidence the items taken by the Agents on January 31, and the information derived from the Agents' discussion with Grimaldi on that day and from the observations made in his home. The motion was denied as to evidence of which the Agents had knowledge prior to their January 31 encounter with Grimaldi. After excluding from the affidavit presented with the application for the warrant the narrative of the events of January 31, ² the court found the remaining recitals of the affidavit ³ established probable cause to issue the warrant.

The appellant presents issues on this appeal relating to several aspects of the case. On the denial of the motion to suppress he raises the questions (1) whether the court erred in refusing to suppress all items seized on February 23 where the affidavit supporting the warrant included recitals of illegally obtained evidence, and (2) whether probable cause existed to issue the warrant after the narrative of the January 31 events was excluded from the affidavit. There are the following issues which arose at the trial: (3) whether the district court erred in failing to instruct the jury to disregard certain comments made in the prosecutor's opening statement, and (4) whether the district court committed error in denying defendant's motion for mistrial. Finally, there is the issue (5) whether the testimony of the witness Suprenant should be excluded as "fruit of the poisonous tree". We consider the issues in the order stated.

I.

Grimaldi argues that because a recital of the statements ⁴ and items of property ⁵ suppressed by the district court was contained in the supporting affidavit for the warrant, the warrant issued "in reliance to a substantial amount on" this evidence, and that therefore all items seized under the warrant should have been suppressed as fruits of the illegal intrusion on January 31. In his argument he constructs an unbroken chain of causation between the illegal search on January 31 and the evidence seized on February 23 by linking the "short time span" between the two dates with the description of the property in the affidavit and warrant. We think the question of suppression of the items seized because of alleged taint attributable to the illegal search cannot be decided on the basis of causation advanced by appellant. Quite clearly this argument overlooks established policies of the exclusionary rule in the setting whether evidence has become "fruit of the poisonous tree".

As stated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the constitutional question under the fourth amendment is " 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959)." Id. at 488, 83 S.Ct. at 417. In practice the Court has

declined to adopt a "Per se or 'but for' rule" that would make inadmissible any evidence . . . which somehow came to light through a chain of causation that began with an illegal (activity). Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).

United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). While it is true, as the Court held in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939), that the exclusionary prohibition of the unlawfully obtained evidence extends as well to derivative evidence as to the direct products of the unlawful activity, the Court there also reaffirmed the holding of Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920), that facts improperly obtained may be proved if knowledge of them is gained from an independent source. We have no doubt that application of the independent-source rule in the context of a search warrant does not offend what we perceive to be the underlying purpose and objectives of the exclusionary rule. See United States v. Giordano, 416 U.S. 505, 554-55, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (separate opinion of Powell, J.).

It cannot be successfully argued that the validity of a warrant and search turns upon the presence of unlawfully obtained information in the affidavit supporting the warrant. Even though the affidavit included the evidence and statements which were suppressed, the district court was not required to suppress other evidence of which the Agents had gained knowledge from independent and lawful sources. See Silverthorne Lumber Co. v. United States, supra; Nardone v. United States, supra. Where the affidavit included illegally obtained evidence as well as evidence derived from independent and lawful sources, a valid search warrant may issue if the lawfully obtained evidence, considered by itself, established probable cause to issue the warrant. United States v. Plotkin, 550 F.2d 693, 697 (1st Cir.), Cert. denied, 434 U.S. 820, 98 S.Ct. 61, 54 L.Ed.2d 76 (1977); United States v. DiMuro, 540 F.2d 503, 515 (1st Cir. 1976), Cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977); United States v. Race, 529 F.2d 12 (1st Cir. 1976).

There is nothing in the record of the case to show that information acquired by the Agents prior to January 31 came from other than independent and lawful sources. No violations of the fourth amendment rights of appellant in the acquisition of that information has been argued. The evidence which came to light as the direct result of the Agents' unlawful activities on January 31 was suppressed by the district court and in determining the validity of the subsequent search the district court excluded such evidence from its consideration. Although appellant has argued that other evidence was derived from the illegal conduct of the Agents, he has not directed our attention to any such evidence; rather, his contention is that all evidence seized on February 23 was marked with the taint of the illegal activities of January 31 and should be suppressed. For the reasons stated above we disagree.

Finally, appellant argues that the court's failure to exclude evidence seized on February 23 which, as appellant insists, was marked with the taint of the January 31 unlawful activities, "will encourage further inappropriate activities of agent investigators". We recognize that the primary justification for the exclusionary rule is deterrence of police activity that violates fourth amendment rights, but we know of no authority which proscribes the use of evidence, where there is a lawful basis for seizing it, because at some prior phase of the investigative process defendant had been the...