U.S. v. Gallo-Roman, GALLO-ROMA

• Decision Date: 08 April 1987
• Docket Number: No. 634,D,GALLO-ROMA,634
• Citation: 816 F.2d 76
• Parties: UNITED STATES of America, Appellee, v. Adalbertoefendant-Appellant. ocket 86-1319.
• Court: U.S. Court of Appeals — Second Circuit

Page 76

816 F.2d 76

UNITED STATES of America, Appellee, v. Adalberto GALLO-ROMAN, Defendant-Appellant.

No. 634, Docket 86-1319.

United States Court of Appeals Second Circuit.

Argued Jan. 8, 1987.

Decided April 8, 1987.

William M. Brodsky, New York City (Baden, Kramer, Huffman & Brodsky, P.C., New York City, of counsel), for defendant-appellant.

Valerie Caproni, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., David V. Kirby, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before FEINBERG, Chief Judge, TIMBERS and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Appellant, Adalberto Gallo-Roman, appeals from a judgment of the United States District Court for the Eastern District of New York, Weinstein, Chief Judge, entered July 2, 1986, convicting him, after a jury trial, of conspiracy to possess cocaine with intent to distribute and of attempted possession of cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), and 846. At a pretrial suppression hearing, the district court denied appellant's motion to suppress evidence seized in a warrantless search, holding that exigent circumstances justified the search. The district court also denied appellant's motion to suppress one of his post-arrest oral statements to an agent which was not recorded in the agent's subsequent written report, holding that government agents are not required to make a full contemporaneous written record of all of a charged person's oral statements. In sentencing appellant the district court imposed two concurrent six-year terms of imprisonment, to be followed by a ten-year special parole term; also, a fine of $50 on each of the two counts.

On appeal, appellant argues, first, that there were no exigent circumstances to justify the warrantless search; second, that the government agent's failure to record in writing a portion of appellant's post-arrest oral statement requires suppression of that portion of the statement; and, third, that the district court erred in imposing a special parole term as part of appellant's sentence.

We hold that exigent circumstances justified the warrantless entry into and search of appellant's apartment. We also hold that failure to make a written record of part of an oral statement does not justify exclusion of testimony about the unrecorded part of that oral statement. Further, we modify the judgment of conviction to vacate the special parole term in the sentence imposed.

The judgment of conviction, as modified, is affirmed.

BACKGROUND

This case results from a warrantless search of appellant's apartment during an attempted controlled delivery of contraband by agents of the Drug Enforcement Administration ("DEA") on March 12, 1986. The events leading up to that search are briefly summarized below.

In January 1986, a United States Customs mail technician in Florida intercepted two pieces of mail addressed for delivery in New York and found that they contained cocaine secreted between photographs and false backs. The envelopes and their contents were forwarded to the DEA in New York for a controlled delivery.

When the two envelopes arrived in New York, Special Agent Dean Kiernan set one aside not to be used in the controlled delivery and repackaged the five photographs contained in the other. He removed the cocaine from those photographs and replaced it with a mixture of trace amounts of cocaine and dextrose. After repackaging the five photographs, the envelope was resealed.

The envelopes were addressed to J.Q.R., P.O. Box 299, Corona, New York. On the morning of March 12, 1986, Agent Kiernan, posing as a postal inspector, placed a call to the address given on the postal box rental agreement, and was informed later that morning by return phone call that someone would be coming to the post office to claim the envelope being used in the controlled delivery. One Rosalba Agudelo arrived at the post office and sought to claim the envelope, presenting a package claim check which had been left in Box 299. When asked if she knew who the addressee, J.Q.R., was, Agudelo replied that the person was a friend who had asked her for permission to use the postal box. Further, responding to Agent Kiernan's request that she leave her address to verify postal records, Agudelo filled out a form with an address in Woodside, Queens. She took the envelope and left the post office.

Agent Kiernan, mistakenly believing that Agudelo would go to the address given on the box rental agreement, went to that location, a shoe repair shop on 111th Street in Queens. Other agents, however, actually followed Agudelo from the post office to a different location, the address she had given in Woodside. Kiernan was informed that Agudelo had in fact gone to the Woodside address and joined the agents already there approximately twenty minutes after Agudelo had entered her apartment. Immediately upon Kiernan's arrival, the agents rang the door bell and Agudelo opened the door. The agents then identified themselves as police and entered the apartment. Agent Kiernan proceeded straight down the hall directly in front of the door toward the master bedroom at the end of the hall. On the bed in the bedroom he observed the envelope which Agudelo had claimed from the post office. At the same time, he heard a noise resembling the sound of a toilet bowl being flushed coming from a bathroom adjacent to the master bedroom. Upon entering the bathroom, Kiernan saw appellant Gallo-Roman standing above the toilet bowl. In the toilet bowl was a small plastic packet which contained the cocaine that had been left as a trace sample. Also, sitting on the sink was one of the photographs which had not yet been opened. Appellant was then arrested and advised of his rights. ¹

Following his arrest, Gallo-Roman made certain incriminating oral statements to Agent Kiernan while still in the apartment. Among other statements, he stated that he could introduce the DEA agents to a cocaine dealer. Kiernan's subsequent written report recorded some but not all of Gallo-Roman's oral statements. Appellant's offer to introduce agents to others who could sell cocaine was not recorded.

As noted, at a pretrial suppression hearing, Gallo-Roman's motion to suppress the evidence seized in the apartment was denied. Appellant's motion to suppress his oral statements made following his arrest was also denied. After a jury trial, appellant was convicted. This appeal followed.

DISCUSSION

A. Exigent Circumstances

Under general fourth amendment principles "[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances." United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 3302-03, 82 L.Ed.2d 530 (1984). When exigent circumstances do in fact exist, however, a warrantless entry and search does not violate the fourth amendment. Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967). Exigent circumstances refer generally to those situations in which law enforcement officers will be unable or unlikely to effectuate an arrest, search or seizure for which probable cause exists, unless they act swiftly, even though they have not obtained prior judicial authorization. United States v. Campbell, 581 F.2d 22, 25 (2d Cir.1978). Specifically, the Supreme Court has recognized several such emergency conditions, for example, hot pursuit of a fleeing felon, United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976), destruction of evidence, Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966), and an ongoing fire, Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978).

Gallo-Roman contends that no exigent circumstances existed to justify the warrantless search of his apartment and seizure of the cocaine found therein. In other words, according to appellant, any belief on the agents' part that evidence might be destroyed was "mere speculation." In our view however, exigent circumstances did in fact exist, and the DEA case agents reasonably could have expected the evidence seized to be destroyed before they could obtain a warrant. It was certainly reasonable for the agents to conclude that, once the envelope was opened, the false backs removed from the photographs, and the discovery made that the photographs had been tampered with, it would become apparent that the scheme had been uncovered and that the authorities were near. Under these circumstances, the agents reasonably could have anticipated that the perpetrator would act quickly to destroy the evidence of unlawful conduct. Therefore, because possible destruction of the evidence was imminent, the agents did not violate the fourth amendment in entering and searching the apartment.

Appellant presents a number of arguments through which he attempts to avoid application of the exigent circumstances exception. First, appellant argues that the circumstances were not truly exigent in that the goal of the agents in entering appellant's apartment could not have been to prevent the destruction of evidence because they were already in possession of evidence (the untouched envelope not used in the controlled delivery) against Agudelo the person who initially claimed the package. Rather, appellant argues, the goal of the agents in entering the apartment was only to further their investigation with a view toward finding out who else, other than Agudelo, was involved in the importing of drugs into the United States. Appellant's contention is without merit. As we have recently recognized, one of the legitimate purposes of a controlled delivery is to identify and prosecute the person or persons responsible for the movement of contraband. United States v. Singh, 811 F.2d 758 (2d Cir.1987) (quoting Illinois v. Andreas, 463 U.S. 765, 769, 103 S.Ct. 3319, 3323, 77 L.Ed.2d 1003 (1983)). While we need not...