U.S. v. Adams

• Decision Date: 28 May 1980
• Docket Number: No. 79-1500,79-1500
• Citation: 621 F.2d 41
• Parties: UNITED STATES of America, Appellant, v. Carol E. ADAMS, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 41

621 F.2d 41

UNITED STATES of America, Appellant, v. Carol E. ADAMS, Defendant-Appellee.

No. 79-1500.

United States Court of Appeals, First Circuit.

Argued Jan. 8, 1980.

Decided May 28, 1980.

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

Alan R. Hoffman, Boston, Mass., with whom Lynch, Brewer, Hoffman & Sands, Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

On October 17, 1978, five F.B.I. agents and two uniformed policemen entered the apartment of defendant-appellee Carol E. Adams in search of an escaped convict, Marlene Martino, who was found hiding in a closet. No search or arrest warrant had been obtained. Adams was subsequently indicted for harboring a fugitive in violation of 18 U.S.C. § 1072. ¹ The sole issue on appeal, brought by the government pursuant to 18 U.S.C. § 3731, ² is whether the district court erred in suppressing evidence of the seizure of the escaped felon at defendant's apartment on the grounds that there were no exigent circumstances justifying the warrantless entry. Neither the question of probable cause nor that of consent to the search is before us. Defendant has conceded that there was probable cause and the government itself, as will be discussed later, removed the issue of consent from the case.

Because the Supreme Court had left unresolved the question of whether both probable cause and exigent circumstances are prerequisites to an officer's entry into a suspect's home to make a warrantless arrest, ³ we held up this opinion pending the Court's decision in Payton v. New York, --- U.S. ----, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). While Payton does not address directly the issue before us, ⁴ the reasoning leading to its holding that the fourth amendment proscribes a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest, id. at ----, 100 S.Ct. at 1374-75, convinces us that the use of Martino's seizure as evidence against defendant can only be upheld if there were exigent circumstances. Payton stresses the protection that the fourth amendment gives to a person's home:

As the court unanimously reiterated just a few years ago, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313 (92 S.Ct. 2125, 2134, 32 L.Ed.2d 752). And we have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort.

Id. at ----, 100 S.Ct. at 1379-80 (footnote omitted). The court emphasized the difference between a warrantless seizure in an open area and one on private premises, id. at ----, 100 S.Ct. at 1380, and concluded: "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at ----, 100 S.Ct. at 1373.

We turn to the facts. In early October of 1978, the administrator of the Federal Correctional Institution in Alderson, West Virginia, telephoned Special Agent Gallagher of the Boston F.B.I. office to report that Marlene Martino had recently escaped. Martino had been incarcerated for life in 1975, after having been convicted of the contract murder of a soldier. She effected her escape by walking out the back door of a dentist's office in Roanoke, Virginia, where she had been taken for treatment. The prison administrator also informed Agent Gallagher that Martino and Adams had been confined together at Alderson and were well acquainted.

During this same time period, Gallagher received a phone call from Lieutenant Ryan of the Revere, Massachusetts, police force. Ryan informed Gallagher that an informant had told him that Adams received a phone call from Martino who said that she was south of Boston and on her way to Adams' apartment in Revere. Gallagher checked with the Revere police during the next two weeks, but learned nothing more of Martino's whereabouts.

On the afternoon of October 16, 1978, Gallagher was called by a Mrs. Nana Goldberg, the assistant director of a social service agency in Malden, Massachusetts. According to Gallagher's testimony, Mrs. Goldberg informed him that Mrs. Jamison, the housekeeper assigned to work at Adams' apartment, reported that an escaped murderess named Martino was staying there and had been there for some period of time. Mrs. Goldberg also told Gallagher that, according to Jamison, Martino had hidden in the basement of the building when a parole officer came to call on Adams. Gallagher testified that he asked Mrs. Goldberg to have Mrs. Jamison determine the next day whether or not Martino was still at the Adams apartment. At 8:30 a. m. on the following day, October 17, Gallagher received a telephone call from Mrs. Goldberg with the message that Martino was still at the Adams residence. Gallagher and four other F.B.I. agents then went to the Revere police station, where they were joined by two uniformed officers, and all then proceeded to the Adams apartment. Gallagher made no attempt to procure either an arrest or a search warrant prior to going to the apartment. He testified that, in making the arrest, he was relying on statutory authority alone, meaning 18 U.S.C. § 3052. ⁵

The police and F.B.I. agents arrived at Adams' apartment at approximately 9:50 a. m. They knocked on the back door and were met by defendant restraining an agitated Doberman pinscher. They asked her to put the dog in another room, which she did. Believing defendant to be Martino, the agents immediately put handcuffs on her, which stayed on until a neighbor was brought in who verified her claim that she was Carol Adams and not Martino. Adams denied that Martino was in the apartment but, after a short search, Martino was found in a bedroom closet.

At a suppression hearing before a magistrate, Agents Gallagher and Ross testified on the issues of probable cause and exigent circumstances. The magistrate found both probable cause and exigent circumstances and also that Adams had consented to the search. He therefore recommended denial of the motion to suppress.

By agreement of counsel, Mrs. Goldberg's deposition was taken subsequent to the magistrate's recommendation. In her deposition testimony, Goldberg recalled speaking to both Mrs. Jamison and Agent Gallagher on the afternoon of October 16, 1978. Her version of the events differed from Gallagher's in that she had no recollection of being requested to have Mrs. Jamison determine whether Martino was still at the Adams apartment on the morning of October 17. She was sure that she had not spoken to Mrs. Jamison on the morning of October 17, but did remember speaking with Agent Gallagher and telling him that she did not think Mrs. Jamison had mentioned the presence of weapons in the Adams' apartment.

At defendant's request, an evidentiary hearing on the motion to suppress was held before the district court on August 28, 1979. The court considered the testimony adduced before the magistrate, as well as the Goldberg deposition, and decided that there was not such an exigency as would justify the warrantless search.

During the hearing, the court asked, "Does the government claim that there was consent here?" The reply was, "No, Your Honor." In light of this, it is difficult for us to understand the government's statement in its brief that "the entry into defendant's residence was peaceful, indeed the defendant permitted the agents to enter the apartment." Brief at 14. Our review is of the district court's opinion; we therefore assume, as it did, that the government does not claim that consent was given to enter defendant's apartment. We add that, short of turning the dog loose, there was not much defendant could have done when confronted with seven men at her door, two in police uniforms, particularly since they believed she was the escaped felon and acted on that assumption by handcuffing her as soon as they...