U.S. v. Delguyd

• Decision Date: 01 November 1976
• Docket Number: No. 76-1116,76-1116
• Citation: 542 F.2d 346
• Parties: UNITED STATES of America, Appellant, v. Anthony F. DELGUYD and Santo Maimone, Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 346

542 F.2d 346

UNITED STATES of America, Appellant, v. Anthony F. DELGUYD and Santo Maimone, Appellees.

No. 76-1116.

United States Court of Appeals Sixth Circuit.

Argued June 22, 1976.

Decided Sept. 29, 1976.

Rehearing Denied Nov. 1, 1976.

Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Reuben H. Wallace, Jr., T. George Gilinsky, Sidney M. Glazer, Washington, D. C., for appellant.

Elmer A. Giuliani, Cleveland, Ohio, for Delguyd.

Gerald Gold, Gold, Rotatori, Messerman & Hanna, Robert J. Rotatori, Niki Schwartz, Cleveland, Ohio, for Santo Maimone.

Before WEICK, EDWARDS and McCREE, Circuit Judges.

WEICK, Circuit Judge.

The government has appealed from an order of the United States District Court for the Northern District of Ohio suppressing evidence seized by the FBI as the result of a warrantless entry into the residence of Appellee, Santo Maimone. Although the evidence suppressed had been seized pursuant to a search warrant, the affidavit supporting the application for the warrant contained facts learned by FBI agents when they broke into an apartment in an attempt to prevent the destruction of evidence at a time when it was in the process of being destroyed. Because the question presented requires a determination of whether the situation at the time of the warrantless entry could justify findings of probable cause and exigent circumstances, a lengthy recital of the facts of the case is required.

I THE FACTS

During the course of an investigation of loan sharking activities in the Cleveland area, the FBI ran a wiretap on the telephone of Appellee, Anthony Delguyd. The wiretap was authorized by court order pursuant to 18 U.S.C. §§ 2510-20, and the legality of the wiretap is not being challenged here. Several conversations between Delguyd and Santo Maimone were intercepted and recorded. The conversations were quite guarded, so it is not clear that during the talks they were always discussing loan-sharking activities. Maimone reported to Delguyd that he had made a loan to a girl by the name of Pam; Delguyd discussed a loan to "Johnny Vit"; in other phone conversations Johnny Vitatonio was heard discussing loans with Delguyd; and there was a reference to "a matter of six." It would not be unreasonable to suspect that they were associated together in the loan shark business.

On the morning of July 15, 1974, the FBI obtained from a magistrate ten search warrants to search various places and persons including the person and residence of Delguyd. Maimone was not a subject of any of the warrants. However, the FBI believed, and apparently with good reason, that Maimone was a confederate of Delguyd, they having observed a prior meeting of Miamone and Delguyd, and having seen Delguyd in the vicinity of Maimone's apartment, and Maimone's car parked at Delguyd's residence, as well as having intercepted the telephone conversations between them. The FBI agents also surmised that if they searched Delguyd's home, he might call Maimone to instruct Maimone to destroy any evidence in his possession concerning their loan-sharking activities. Accordingly, the FBI stationed two agents near Maimone's apartment and continued to monitor Delguyd's phone; they planned to call the agents at Maimone's apartment if Delguyd attempted to call Maimone to order evidence destroyed.

The agents who were to execute the warrant on Delguyd went to his house but he was not there. Later, he arrived at his home but as he began to turn into his driveway, a neighbor waived to him which apparently operated as a signal, and he suddenly turned away and drove off at a high rate of speed as the FBI agents approached him and identified themselves. The agents pursued, but Delguyd drove through red lights and stop signs and eluded them. The agents then alerted other FBI agents including the FBI team staking out Maimone's apartment.

Delguyd did drive to Maimone's apartment complex and stopped his car, where he was confronted by the agents already there. One of the agents noticed that Maimone was watching from the living room window in his apartment; then Maimone disappeared into his apartment. The agents rushed up to the apartment door and after identifying themselves demanded to be admitted. One of the agents heard some rustling In a two-count indictment, Delguyd and Maimone were charged with destroying records to prevent their seizure as evidence by the FBI, in violation of 18 U.S.C. § 2232; and Delguyd was also charged with resisting FBI agents while they attempted to execute the search warrant upon his person, in violation of 18 U.S.C. § 2231.

and then a toilet being flushed, and they therefore grabbed a sledge hammer and broke down the door. Maimone was in the process of tearing up some papers and flushing them down the toilet. The agents retrieved some papers from the toilet, secured the apartment, left the drying papers in the living room, and went to get a search warrant from a magistrate. They returned with the warrant, searched the apartment, and seized various papers which apparently tended to implicate both Maimone and Delguyd in loan-sharking activities.

The District Court held an evidentiary hearing to determine whether it should grant defendants' motions to suppress the evidence seized from Maimone's apartment. This hearing was held after the court had first summarily granted such motions but later had agreed to reconsider, in response to a government request for a hearing. After the hearing, the District Court entered an order to the effect that Delguyd had standing to seek suppression, as well as suppressing the evidence as to both defendants, on the ground that there was neither probable cause nor exigent circumstances to justify the warrantless entry into Maimone's apartment.

The government contests both the District Court's finding of no probable cause or exigent circumstances, and the finding that Delguyd had standing to seek suppression. We shall address the "Standing" issue first.

II STANDING

The District Court did not elucidate its accord of standing to Delguyd, stating only that "the Court believes that under the circumstances of this case defendant Delguyd has standing to challenge the searches herein." It would have been helpful had the District Court explained its reasons for not applying the well-known rule most recently announced by the Supreme Court, in Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), that a defendant has no standing to contest a search and seizure where he is not on the premises at the time of the search and alleges no proprietary or possessory interest in the premises and is not charged with an offense that includes as an essential element, possession of the seized evidence at the time of the search. As explained in Alderman v. United States, 394 U.S. 165, 171-76, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), Fourth Amendment rights are personal in nature and cannot be vicariously asserted by one whose privacy was not invaded by the search. ¹

Delguyd insists that he has standing because he was on the premises at the time of the warrantless entry, or that he would have been in the apartment as an invitee had he not been restrained from entering the apartment by FBI agents in the parking lot. We do not agree that a person can extend the area in which he is entitled to Fourth Amendment protection by demonstrating an intention to visit a particular place.

Delguyd cites the case of United States v. Fay, 225 F.Supp. 677 (S.D.N.Y.1963), reversed on other grounds, 333 F.2d 28 (2d Cir. 1964), for the proposition that an invitee found outside an apartment has standing to contest a search of the apartment. The facts in that case, however, indicate that the petitioner had become an invitee prior to being accosted by police in the hallway immediately outside the doorway to the apartment; further, that the tenant, although talking on the telephone inside the apartment, was in plain view because the apartment door was open; and that the petitioner was immediately outside the doorway. The Fay decision effectively demonstrates the flexibility of the law in refusing to hinge the question of standing on whether the petitioner was found two feet inside or two feet outside the open doorway to the apartment.

However, Delguyd's argument asks us to extend the on-the-premises principle beyond the breaking point. Delguyd had done no more than enter the parking lot of a large apartment complex. Although his actions created a strong inference that he was on his way to visit Maimone, apparently to advise him to destroy evidence, his destination is irrelevant in determining the scope of his Fourth Amendment rights under Brown and Alderman. A person found in an apartment parking lot does not thereby gain standing to contest a search of an apartment of someone else in the complex. A visitor does not have any privacy interest as to an apartment unless he is in the apartment.

Delguyd's other major contention in support of granting him standing is that he is entitled to "automatic standing" under the rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In Jones, the Supreme Court held that a person charged with an offense, one element of which is possession of an item at the time of the search, is automatically entitled to standing to contest the legality of the search. This rule was formulated to protect a person's Fifth Amendment right to avoid self-incrimination since otherwise he would have to admit possession in order to establish standing. The necessity for the Jones rule was eliminated by the Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which held that an admission by a defendant in a suppression hearing could not be used against him at trial. This Court has subsequently held that Simmons eliminated the automatic standing rule of Jones; United States v. Dye, 508 F.2d 1226, 1232-34 (6th Cir. 1974), cert....