U.S. v. Diaz
| Decision Date | 27 June 1978 |
| Docket Number | No. 988,D,988 |
| Parties | UNITED STATES of America, Appellee, v. Mario DIAZ, Appellant. ocket 78-1109. |
| Court | U.S. Court of Appeals — Second Circuit |
Ivan S. Fisher, New York City (Joseph H. Adams, New York City, of counsel), for appellant.
Sarah S. Gold, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., and Richard D. Weinberg, Asst. U. S. Atty., New York City, of counsel), for appellee.
Before FRIENDLY and TIMBERS, Circuit Judges, and HOFFMAN, District Judge. *
Mario Diaz appeals from a judgment of the District Court for the Southern District of New York convicting him, after a trial, on three counts of an indictment. The first count charged Diaz with conspiring to distribute heroin and to possess heroin with intent to distribute it, in violation of 21 U.S.C. § 846. The two other counts charged him with the substantive crimes of distribution of and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He was sentenced to concurrent terms of 10 years imprisonment on each count and a 10 year special parole term thereafter. The sole ground of appeal is the court's refusal to suppress $14,000 in currency found by DEA Detective Campbell in a water closet tank in an apartment which Diaz was sharing with Ms. Laura Torres at the time of his arrest.
This narrowing of the many suppression claims originally raised is a result of the meticulous findings of Judge Haight, which have also been of great assistance to us. To understand the one point still at issue, we need to recount only a few of the many events of the night of May 4-5, 1977 when the seizure here in question occurred.
These began with an endeavor by DEA agents to purchase two ounces of heroin from Rolando Watley in midtown Manhattan. Later developments gave the agents reason to think that Diaz was Watley's supplier. They followed Diaz' taxi to an apartment building in Queens, where there occurred other highly significant incidents unnecessary here to detail. After obtaining legal advice, the correctness of which is unchallenged, that there was probable cause to arrest Diaz, 1 attempting to gain peaceful access to the Diaz-Torres apartment, giving notice of their authority and purpose, and hearing the flushing of a toilet the officers broke down the door. Diaz was standing close by; after a brief struggle, he was arrested, handcuffed and advised of his rights. Ms. Torres, who was near him, was likewise so advised. After about 15 minutes two officers removed Diaz to police headquarters.
Immediately after entering the apartment the officers checked it to make sure that no one else was there. During the course of this check Agent Daly observed scraps of paper in the bowl of the toilet in one of the apartment's two bathrooms; the toilet was trickling with a continuous motion. The papers consisted, in part, of a red cover of what appeared to be a telephone book and blue lined paper with telephone numbers.
Detective Campbell, who had arrived at the apartment after entrance had been gained and heard talk about the flushing of a toilet, proceeded to the basement to obtain the aid of the superintendent of the apartment building in getting at the traps. This endeavor led to the discovery of another red cover and more paper with telephone numbers.
When Campbell returned to the apartment, he found Sergeant Kreusi, who was in charge of the operation, and Agent Daly in the living room, talking with Ms. Torres in an effort to obtain her consent to a search of the apartment. When this search began, Campbell was instructed to watch over the papers. For a reason not clear from the record, Campbell walked down the hall toward the bedroom, without objection from Ms. Torres. At this point we had best quote Judge Haight's findings:
On his way, he heard the sound of a constantly running toilet. He asked Torres what was wrong with the toilet, and she responded that it had given continuous trouble. Campbell, familiar as a home owner with the manner in which toilet tanks keep running and steps that can be taken to stop them, went into the bathroom and took off the top of the water closet tank. He thereupon observed, "stuffed into the works," a large brown paper bag. He pulled out the bag, opened it, and discovered about $14,000 in cash. Campbell advised Kruesi of this find, who instructed Campbell to place the money in the dining room, where it was subsequently counted, and then removed from the apartment by the police. Campbell testified that after lifting the package out of the tank, the toilet stopped running; "it was just that it was jammed with the package that was in there." In contrast with other aspects of the evidence, there is no dispute as to how this package of money came to be found. Torres confirmed that the toilet was running; that Campbell mentioned it to her; and that she told him about her problems with the toilets and that the superintendent had not been able to fix them properly.
Although holding that the Government had not sustained its burden of showing a consent to the search of the apartment 2 and therefore suppressing items found in the course of the search, the judge concluded that the money found in the toilet tank should be received in evidence under the plain view doctrine. He took as the controlling standard our statement in United States v. Berenguer, 562 F.2d 206, 210 (2 Cir. 1977), that, under the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 464-69, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the plain view doctrine will support a warrantless search and seizure if but only if three conditions are satisfied, to wit:
(1) the agents must be lawfully on the premises; (2) the discovery must be inadvertent; and (3) its incriminating nature must be immediately apparent.
and found that all had been.
Diaz' principal claim is that Agent Campbell...
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