U.S. v. Glasby
| Citation | 576 F.2d 734 |
| Decision Date | 18 May 1978 |
| Docket Number | No. 78-1016,78-1016 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anthony GLASBY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Elliot Samuels, Samuels & Weininger, Chicago, Ill., for defendant-appellant.
Leida Schoggen, Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, Circuit Judge, MARKEY, Chief Judge of the Court of Customs and Patent Appeals, 1 and CUMMINGS, Circuit Judge.
The sole issue is whether the district court erred in denying the defendant's motion to suppress evidence seized during a search of his apartment. We find that the district court properly denied the motion and therefore affirm the conviction.
On May 5, 1977 Postal Inspector Hagedorn was notified in Chicago that two days earlier United States Customs in New York had seized a parcel of mail containing heroin. The parcel had been mailed from Thailand addressed to the defendant's Chicago residence. Among other items the parcel contained a pair of platform boots; the heroin was in the heels of the boots. Upon receipt of the parcel in Chicago further testing confirmed that the substance was heroin. Pictures were taken and the package resealed in its original wrappings. A controlled delivery of the parcel was unsuccessfully attempted on May 12.
A successful controlled delivery occurred on May 26. An affidavit and search warrant had previously been prepared by Agent Tucci and were ready for presentment to a magistrate except for the minor addition of details such as actual time of delivery. Arrangements had been made to have a magistrate ready at 7:30 a. m. At 6:45 a. m. several agents assembled near the defendant's residence. Inspector Witkowski left the group and at about 7:10 a. m. made the controlled delivery directly to Anthony Glasby after Ernest Glasby, the defendant's father, had answered the door of the apartment. Witkowski returned to the group of agents who then placed the building under surveillance while remaining in radio contact with one another. About one-half hour later, at 7:45 a. m., the defendant's father left the building carrying two bags, a plastic bag which he dropped by some garbage cans and a brown paper bag. Agents Hacias and Inspectors Hagedorn and Witkowski notified the others of the departure, and then followed Ernest Glasby in their car down the alley adjacent to the building. Two blocks away Hacias, Hagedorn, and Witkowski arrested the father, brought him into the vehicle, opened the paper bag, and discovered the boots with the heels and heroin removed. Witkowski then advised Glasby of his Miranda rights. Hacias notified the other agents of this development, suggesting that the heroin was probably still in the building.
What occurred next is not clear. Hacias, who had actually questioned Ernest Glasby, was unavailable for testimony at the suppression hearing. According to Hagedorn, when the agents told the father that they were going to be entering his apartment and were discussing how to gain entry, he responded that he had nothing to hide and gave his consent and house keys. Witkowski testified that Hacias said:
"We know there is heroin in the house, if you didn't bring it out."
(Glasby) says,
And Agent Hacias then said, "Well, if there is no heroin in the house, can we go in and see?
He says, at which time he offered a set of house keys to Agent Hacias.
During this same period of time, Agent Tucci and Assistant United States Attorney Frese were at the federal building in Chicago completing the search warrant and awaiting the arrival of the magistrate, who did not arrive until nearly one hour after the arranged time. After Frese heard that the empty boots had been recovered, he told the agents to secure the apartment, but not to conduct any search until the warrant arrived.
About 7:45 a. m., upon being told to secure the apartment, Agents Zervos and Sanchez, who were stationed in the alley, headed toward the building and saw Anthony Glasby on the back porch. They announced that they were federal officers and started up the stairway. On their way up the stairs, they heard a door slam and when they reached the porch found the door closed. The agents again identified themselves, waited ten seconds, and then Zervos kicked in the door. As he entered the kitchen, Zervos heard a toilet flushing and ran to the bathroom area where he grabbed the defendant. Zervos observed a plastic bag with a white powdery residue in it on the floor by the defendant's feet and water running in the sink. Zervos was unable to retrieve any residue from the toilet bowl. He then went to the front door to admit the other agents who were knocking on the door. The agents and the two Glasbys assembled in the dining room to await the arrival of the warrant.
At 8:25 a. m. the magistrate arrived at his office and signed the warrant. Tucci notified the other agents and told them not to do anything until he arrived. He arrived about 8:45 a. m. The agents then proceeded to search the apartment for additional evidence.
Prior to trial the judge held a hearing and denied the defendant's motion to suppress. After a bench trial, the defendant was found guilty of possession of heroin in violation of 21 U.S.C. § 841(a)(1) and sentenced to two years imprisonment followed by a three-year special parole term.
The defendant urges reversal on the ground that his Fourth Amendment rights were violated. The record clearly shows that no search warrant had been signed until well after the agents' entry into the apartment. A forcible entry into a private residence without a warrant is per se unreasonable,...
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