U.S. v. Mannino

• Citation: 635 F.2d 110
• Decision Date: 18 November 1980
• Docket Number: D,No. 167,167
• Parties: UNITED STATES of America, Appellee, v. Paul MANNINO, Defendant-Appellant. ocket 80-1206.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 110

635 F.2d 110

UNITED STATES of America, Appellee, v. Paul MANNINO, Defendant-Appellant.

No. 167, Docket 80-1206.

United States Court of Appeals Second Circuit.

Argued Sept. 9, 1980.

Decided Nov. 18, 1980.

Stuart J. Baskin, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., S. D. N. Y., Gregory L. Diskant, Asst. U. S. Atty., New York City, of counsel), for appellee.

Graham Hughes, New York City (Gerald L. Shargel, New York City, of counsel), for defendant-appellant.

Before FEINBERG, Chief Judge, and FRIENDLY and OAKES, Circuit Judges.

FEINBERG, Chief Judge:

Paul Mannino appeals his conviction, following a jury trial before Judge Robert W. Sweet in the United States District Court for the Southern District of New York, on an indictment charging several violations of federal drug, firearm, and racketeering laws. Mannino's principal contention is that critical evidence against him was obtained by means of an unconstitutional search and should therefore not have been admitted at trial. He also argues that the evidence was insufficient to sustain his conviction under 21 U.S.C. § 848 for engaging in a continuing criminal enterprise, or for conducting an enterprise affecting interstate commerce through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c). In this latter connection, Mannino also challenges the order of forfeiture of his residence as property acquired or maintained in violation of the racketeering laws.

For reasons set out below, we affirm.

I

In July 1979, undercover agents of the federal Drug Enforcement Administration (DEA) negotiated the first of a series of purchases of methaqualone tablets (Quaaludes) from a Brooklyn-based dealer named Joseph Cordano. In September, Cordano told one of the agents that his source, whom he identified as "Paulie," was willing to sell some 70,000 pills, but only if delivery took place in Brooklyn. The agent urged that delivery be made to him at a hotel, but Cordano indicated that he would have to discuss the request with "Paulie." A few days later, the agent called Cordano to set up the deal. Cordano said he was going to "Paulie's" house; surveillance agents following him ascertained that his destination was the residence of Paul Mannino. While Cordano was there he spoke again by telephone with the agent, telling him that he could deliver only 10,000 pills and that the delivery would have to be at Cordano's residence. The agent tried to persuade him to change the terms; Cordano could be heard relaying the agent's requests to "Paulie," who in turn could be heard instructing Cordano what to say. In the end the agent gave in, accepting the terms given. When Cordano later arrived at his residence with the pills, he was arrested.

Shortly thereafter, DEA agents watching Mannino's residence observed him and another person load several large boxes into the rear of a station wagon that had been backed into the driveway. When the two began to drive away, the agents blocked the car's path and arrested them. Immediately thereafter, the agents opened one of the boxes, discovering that it contained a large quantity of Quaaludes. Mannino was then taken into the house, assertedly at his own request to escape the scrutiny of gathering neighbors. Once inside, the agents conducted a cursory search of the house, in the course of which they seized a loaded, sawed-off shotgun.

Returning to the station wagon some fifteen minutes later, one of the agents observed a white plastic bag on the front seat. According to the testimony of the agent at a pretrial hearing on a motion to suppress, the bag was open and a "Composition" brand notebook protruded from the top. Mannino, however, asserted that the notebook was within a folded-over brown paper bag inside the plastic bag, and that the plastic bag was itself folded shut. ¹ The agent removed the notebook from the bag and "leafed through" it closely enough to recognize that it contained an extensive and detailed record of drug sales and purchases. ² He also lifted out the paper bag and realized, upon feeling the shape and weight of its contents, that it contained guns. When he opened the bag, he found three loaded handguns and an air pistol.

The next day, the agents returned to the house with a search warrant and seized a number of objects later used at trial, including shotgun shells, telephone and address books, and $45,675 in cash.

Mannino was indicted in February 1980, together with Cordano and three others who had allegedly been involved in illegal activities with Mannino. The indictment charged Mannino ³ with conspiracy to violate federal drug laws, in violation of 21 U.S.C. § 846; engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848; four separate counts of distributing or possession Quaaludes, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1) (B), and 18 U.S.C. § 2; various firearm violations; and conducting, through a pattern of racketeering activity, an enterprise whose activities affect interstate commerce, in violation of the Racketeer-Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962(c). The jury convicted Mannino on all counts. He was sentenced to a term of seventeen and one-half years on the continuing criminal enterprise conviction; twelve and one-half years on the RICO conviction and ten years on the firearms convictions, both terms to run concurrently with the first sentence; and five years on each of the drug distribution convictions, to run concurrently with each other but subsequent to the RICO term, and to be followed by a special parole term of ten years. In addition, pursuant to a special verdict the court ordered the forfeiture to the United States of Mannino's residence, which the indictment had alleged to be forfeitable under both the continuing criminal enterprise and RICO statutes.

II

Mannino moved prior to trial for the suppression of evidence seized without a warrant from the house and station wagon, including the boxes of drugs and the contents of the plastic bag. In a careful opinion following a hearing, Judge Sweet granted the motion with respect to some of the boxes and certain other evidence, but denied it with respect to the notebook and guns found in the plastic bag. D.C., 487 F.Supp. 508. The court reasoned that the search of the bag was justified because it was unsealed and in plain view on the front seat of the car, because the defendant had no reasonable expectation of privacy in it, and because the agents had probable cause to search it in light of the discovery of the shotgun in the house.

Mannino challenges the correctness of this conclusion under the standards set forth in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). In Chadwick, the Court held unconstitutional the warrantless search of a double-locked footlocker seized from the trunk of defendant's automobile. In Sanders, the Court reached the same conclusion regarding an unlocked suitcase taken from the trunk of a taxi. In each of these cases, as in the present one, the police had ample and reasonable cause to suspect that the objects searched held evidence of crime; the issue was whether, given the existence of probable cause, the search of such personal luggage was permissible in the absence of a warrant. Specifically, the Court considered whether a search might be predicated on the "automobile exception" to the warrant requirement, established by Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). However, the Court did not purport to decide whether and in what circumstances other recognized exceptions, such as "special exigencies," might apply to luggage searches. ⁴

The critical inquiry under Chadwick and Sanders is the extent to which the object searched is protected by its owner's "reasonable expectation of privacy." An object in which the owner lacks any such expectation may be searched on the basis of probable cause when it comes lawfully into the possession of the police. On the other hand, when the object is one entitled to independent privacy protection, a warrantless search is permissible only when one of the recognized exceptions is applicable. Determining when an expectation of privacy does or does not exist is "in a sense ... a line-drawing process," but one that "must be guided by established principles." Arkansas v. Sanders, supra, 442 U.S. at 757, 99 S.Ct. at 2589.

In finding that the footlocker in Chadwick and the suitcase in Sanders were protected from warrantless search, the Supreme Court attached special importance to their "fundamental character as a repository for personal, private effects." Arkansas v. Sanders, supra, 442 U.S. at 762-63 n.9, 99 S.Ct. at 2592 n.9. The owners of such a "repository" had a reasonable expectation that the privacy of its contents would be respected. Decisions in a number of courts have reached the same conclusion with respect to a wide variety of containers that more or less closely resemble traditional forms of "luggage," ranging from purses and wallets to a guitar case. See, e. g., the cases catalogued in United States v. Ross, No. 79-1624, slip op. at 9 n.3 (D.C.Cir. 1980), vacated and rehearing en banc granted (June 26, 1980); cf. id. n.4. This court has gone a step further in recognizing a protected expectation of privacy in a securely taped cardboard box secreted in the back of a van whose windows had been painted over. United States v. Dien, 609 F.2d 1038, 1044-45 (2d Cir. 1979), adhered to on rehearing, 615 F.2d 10 (2d Cir. 1980). Cf. Cooper v. Commonwealth, 577 S.W.2d 34 (Ky.App.1979) (permitting warrantless search of taped electric razor case).

But not all containers that happen to carry personal effects are immune from warrantless search: there must be some objective,...