U.S. v. Kon Yu-Leung
| Decision Date | 25 July 1990 |
| Docket Number | C,No. 349,D,YU-LEUN,349 |
| Citation | 910 F.2d 33 |
| Parties | UNITED STATES of America, Appellant, v. KONheng Kim Leang, Kon Pui Fong, Kon Yu-Son, Chew Tai Li, Lee Kwun, Hsu Haung-Yao, Fong Chi Chung, Helen Chow and John Ruotolo, Defendants, John Ruotolo, Defendant-Appellee. ocket 89-1281. |
| Court | U.S. Court of Appeals — Second Circuit |
David C. James, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Catherine E. Palmer, Patricia A. Pileggi, Asst. U.S. Attys., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellant.
John F. Byrne, New York City (Michael F. Grossman, Samuels & Grossman, New York City, of counsel), for defendant-appellee.
Before MINER and MAHONEY, Circuit Judges, and CARMAN, Judge. *
The government appeals, pursuant to 18 U.S.C. Sec. 3731 (1988), from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Chief Judge, granting defendant-appellee John Ruotolo's motion to suppress physical evidence seized from his home during a consent search. The district court granted Ruotolo's motion because Ruotolo was not informed, at the time he consented to the search, that he had been indicted. The district court determined that a postindictment consent to a search is a critical stage of a criminal litigation to which the sixth amendment right to counsel accordingly attaches, and that Ruotolo could neither knowingly and intelligently decide whether to proceed without counsel nor validly consent to the search without being informed that he was under indictment.
We reverse and remand for a determination whether Ruotolo's consent was voluntarily given. We conclude that a consent to a search is not a critical stage of a criminal litigation. Accordingly, the sixth amendment right to counsel is inapplicable, and a fourth amendment analysis as to voluntariness is appropriate.
On March 13, 1988, John Ruotolo was arrested at his home in Montclair, New Jersey pursuant to an arrest warrant which had been issued December 21, 1987. The consent search of his home that ensued shortly after his arrest is the subject of this appeal.
On December 21, 1987, the same day the arrest warrant was issued, a grand jury in the Eastern District of New York returned a sealed, fourteen-count indictment that charged Ruotolo and nine other defendants with, inter alia, conspiring to import substantial quantities of heroin into the United States from southeast Asia between January, 1984 and December, 1987. The Drug Enforcement Administration ("DEA") planned to arrest the indictees the evening of March 13, 1988. The scenario called for the initial arrest of the leader of the organization, Kon Yu-Leung, followed in quick succession by the arrest of the other defendants worldwide.
Accordingly, between 8:00 and 9:00 p.m. on the evening of March 13, 1988, six DEA agents went to the vicinity of Ruotolo's home with the warrant for his arrest, and awaited word of Kon Yu-Leung's arrest. The agents wore civilian clothes and did not have their badges displayed. Upon being advised that Kon Yu-Leung had been arrested, the agents proceeded with Ruotolo's arrest at approximately 11:00 p.m. Agent Michael Pasterchick, who led the Ruotolo arrest, went to the side door of the house with four other agents, and the remaining agent went to the back of the house. Pasterchick, with his gun hidden but drawn, knocked on the door, which was answered by Ruotolo's thirteen-year-old daughter. Without identifying himself as a police officer, Pasterchick inquired as to Ruotolo's whereabouts. The daughter responded that her father was in the kitchen. She led Pasterchick to the kitchen, where he identified himself as a federal agent and arrested Ruotolo, placing him in handcuffs.
Pasterchick had been advised that Ruotolo, who had been a police officer in New York City for approximately twenty years, would most likely have numerous weapons in the house. Upon inquiry, Ruotolo confirmed the presence of guns. Ruotolo also told Pasterchick that his wife and two other children were in the house. Mrs. Ruotolo and the other children were summoned to the kitchen. Subsequently, Mrs. Ruotolo and the children were taken to a "library-type room" by a female agent.
Pasterchick and four other agents conducted a security sweep of the house, accompanied by Ruotolo. The agents found a loaded gun on top of the armoire in Ruotolo's bedroom. Ruotolo told them about a second gun in one of his sports jackets, and that weapon was also seized. The agents unloaded both guns and finished the sweep in approximately ten minutes. During the security sweep, the sixth agent remained with Mrs. Ruotolo and the children downstairs. At the conclusion of the sweep, which was conducted with weapons drawn, all agents holstered their guns.
The agents and Ruotolo returned to the kitchen, where Pasterchick read Ruotolo, from a printed card, the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked him whether he wished to answer any questions and would consent to a search of the house. Ruotolo responded, Pasterchick responded, "Fine," but told Ruotolo that because of the ongoing investigation and arrests, he would not be allowed to make any telephone calls and therefore could not contact his attorney. Pasterchick then telephoned fellow agents to advise them that Ruotolo was under arrest and had declined to allow a search of his home, and to request that they proceed to obtain a search warrant. Pasterchick testified that he was aware that affidavits had been prepared in advance to obtain a search warrant for Ruotolo's home, should that prove necessary.
After making the call, Pasterchick returned to the kitchen and told the Ruotolos that arrangements were being made to obtain a warrant. He stated that the agents would remain in the house until he was advised whether a search warrant would be obtained. Ruotolo then initiated a conversation with Pasterchick regarding a consent search. Ruotolo asked Pasterchick whether his consent to a search would expedite matters, and, if so, whether Mrs. Ruotolo and he would be allowed to accompany the agents during the search. Although Pasterchick stated that a warrant was being obtained and he was accordingly indifferent to Ruotolo's consent to a search, Pasterchick also agreed that the agents would leave upon the conclusion of the search, and that the Ruotolos would be permitted to accompany the DEA agents during the search. Some time during the course of this dialogue, the agents cuffed Ruotolo's hands in front of, rather than behind, him to permit him to smoke cigarettes.
Ruotolo discussed the situation with his wife, and then consented to a search. Pasterchick then went to his car to obtain a consent form that he filled out and read aloud to Mr. and Mrs. Ruotolo, who both signed the form. The consent form was signed at 12:05 a.m. on the morning of March 14, 1988. Aside from the title and signatures, it read as follows:
I, John Ruotolo and Gail Ruotolo, having been requested to consent to a search of my residence located at 1 Stonebridge, Montclair, NJ and having been duly advised of my constitutional rights to (1) refuse such consent, (2) to require that a search warrant be obtained prior to any search, (3) that if I do consent to a search, any evidence found as a result of such search, can and will be used against me in any civil or criminal proceedings, (4) that I may consult with an attorney of my choosing before or during the search and (5) that I may withdraw my consent to search at any time prior to its conclusion.
After having been advised of my constitutional rights, I hereby knowingly, intelligently and voluntarily waive my above rights and consent to a search and authorize S/A Michael Pasterchick and other Special Agents of the Drug Enforcement Administration, United States Department of Justice, to conduct a complete search of the above described residence.
Two teams of agents, each accompanied by one of the Ruotolos, conducted the search of the house, which lasted about two hours. Upon its completion, Ruotolo was strip searched and then taken to a local jail. 1 Before leaving, Ruotolo gave his wife a card containing an attorney's name and number, and told her to contact the attorney as soon as she could. Also prior to his departure, his handcuffs were removed to permit him to say good night to his daughters, who by then had gone to bed.
The search produced nineteen handguns, passports, sets of gold coins, various documents, and other items. Before the agents left the Ruotolo home, the items seized were inventoried by Pasterchick in the kitchen in the presence of Mrs. Ruotolo. Preparation of the inventory list took approximately two hours. The agents did not leave the Ruotolo home until approximately 5:00 a.m. on March 14, 1988.
The district court held hearings on December 9 and 12, 1988 on Ruotolo's motion to suppress the physical evidence seized during the search. Ruotolo contended, inter alia, that this evidence should be suppressed because his consent was obtained in violation of his sixth amendment right to counsel.
As indicated hereinabove, the district court ruled that a postindictment consent to a search is a critical stage of a criminal litigation to which the sixth amendment right to counsel attaches. The court also stated, in a lengthy footnote that reviewed the pertinent testimony at the suppression hearing, that "the consent in this case appears to have been voluntarily made and fairly bargained for." The court nonetheless concluded, in its central ruling:
Ruotolo was not informed that he was under indictment at the time he gave his consent. Under the case of [...
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