U.S. v. Oguns

• Decision Date: 17 December 1990
• Docket Number: D,No. 172,172
• Citation: 921 F.2d 442
• Parties: 31 Fed. R. Evid. Serv. 1493 UNITED STATES of America, Appellee, v. Olawale Olamrewaju OGUNS, Defendant-Appellant, Adenrele, et al., Defendants. ocket 90-1098.
• Court: U.S. Court of Appeals — Second Circuit

Page 442

921 F.2d 442

31 Fed. R. Evid. Serv. 1493

UNITED STATES of America, Appellee, v. Olawale Olamrewaju OGUNS, Defendant-Appellant, Adenrele, et al., Defendants.

No. 172, Docket 90-1098.

United States Court of Appeals,

Second Circuit.

Argued Sept. 21, 1990.

Decided Dec. 17, 1990.

Henriette D. Hoffman, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.

David C. James, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., Rona M. Wittels, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before OAKES, Chief Judge, MESKILL, Circuit Judge, and RESTANI, ^* Judge.

MESKILL, Circuit Judge:

Olawale Oguns appeals from a judgment entered following a jury trial in the United States District Court for the Eastern District of New York, Raggi, J., convicting him of importation of heroin under 21 U.S.C. Sec. 952(a) and of possession with intent to distribute heroin under 21 U.S.C. Sec. 841(a)(1). On this appeal we address three challenges to the district court's judgment: (1) whether evidence obtained during a search of defendant's apartment should have been suppressed because defendant's consent to search the apartment was tainted by two prior illegal entries into the apartment by government agents; (2) whether evidence of a phone call admitted at trial was inadmissible hearsay; and (3) whether the evidence presented at trial was insufficient to support the verdict.

We answer all three inquiries in the negative and we affirm.

BACKGROUND

On May 31, 1989, United States Customs Service agents arrested Saka Adenrele at John F. Kennedy International Airport in New York, after a customs inspection revealed that he was carrying 1,405 grams of heroin in his underwear. Adenrele agreed to cooperate with the customs agents. He told the agents that he had received the heroin from a woman in Nigeria named Bola Williams, who had told him to deliver it to defendant Oguns or to Timo, Oguns' roommate. At the request of the customs agents, Adenrele placed a recorded phone call to Oguns and Timo at their address, using the phone number that Bola Williams had given him. Defendant Oguns answered the phone, and the two conversed in a Nigerian dialect. Adenrele informed the agents, who did not understand this dialect, that Oguns told him to bring the "stuff" to his address. Oguns told Adenrele that he did not have any money but that his brother Timo might have some when he returned the following day. Oguns suggested that Adenrele come to his apartment and stay for the night. Oguns also asked Adenrele to call him back one-half hour later. During the second phone conversation, which was also recorded, Oguns told Adenrele to come to his apartment in Brooklyn in an "unmarked" (non-yellow) cab.

After preparing a sample of the heroin for delivery, the agents and Adenrele drove to Oguns' apartment. Adenrele rode in a While some agents apparently stayed in the apartment after the security sweep, other agents brought Oguns into his apartment and seated him on his couch. After loosening his handcuffs, Agent Devine read Oguns his Miranda rights in English, stopping periodically to ask Oguns if he understood what had been said. Oguns did not appear to have any difficulty understanding him. Agent Devine then read a preprinted consent to search form to Oguns. The document indicated that Oguns had the right to refuse to consent to a search and to request that a warrant be obtained, that any evidence seized could be used against him, that he could consult an attorney before deciding whether to consent, and that he could withdraw his consent at any time before the conclusion of the search. Oguns listened, read the consent form himself, and then signed the document. During the subsequent search, agents seized miscellaneous papers identifying Oguns and Timo and a number of cards and letters with Bola Williams' name written on them.

cab driven by Agent Tsang Fong, and the other agents followed in at least three unmarked cars. En route to Oguns' apartment, Adenrele made an unrecorded phone call from a public telephone to Oguns. Oguns told Adenrele that he would be waiting outside wearing a pair of shorts. When they arrived, Oguns was sitting on the front steps of a two family house. Oguns approached the cab, gave Agent Fong $10 for Adenrele's fare, briefly spoke in the Nigerian dialect to Adenrele, and grabbed Adenrele's garment bag. Oguns and Adenrele walked toward the building together, with Adenrele carrying a tote bag which contained the heroin sample. As they neared the building, Agent Fong gave a prearranged arrest signal, and several officers arrested and handcuffed Oguns at gunpoint just outside of his apartment. Seeing an open apartment door abutting the hallway inside the apartment building, Agent Devine asked Oguns if it was his apartment. Oguns responded that it was, and several agents conducted a security sweep of the apartment, which lasted approximately two minutes. The agents did not find anyone in the apartment or seize any evidence.

During the search of the apartment, the apartment telephone rang and Agent Gray, another member of the arrest team, answered it. The caller asked to speak to Oguns. Agent Gray told the caller that Oguns had gone to the store but indicated that he, the agent, was a friend of Oguns. The caller then asked, "Have the apples arrived there?" Evidence introduced at trial showed that narcotics traffickers often use code words when discussing drugs on the telephone.

On June 13, 1989, a grand jury indicted Oguns on three counts: conspiracy to import in excess of one kilogram of heroin, importation of in excess of one kilogram of heroin, and possession with an intent to distribute in excess of one kilogram of heroin. Oguns filed a pretrial motion to suppress statements and evidence seized from his apartment. In support of his motion, he advanced three arguments: (1) the agents lacked the requisite probable cause to arrest him; (2) he did not waive his Miranda rights; and (3) he did not voluntarily consent to the search of his apartment. At a suppression hearing on November 7, 1989, Judge Raggi heard testimony from Agent Devine and oral argument on behalf of the government and the defendant. She then denied Oguns' suppression motion. The judge found that the agents had probable cause to arrest Oguns. Although concerned about the effect of the presence of the agents in Oguns' apartment, Judge Raggi also found that Oguns waived his Miranda rights and, under the totality of circumstances, knowingly and voluntarily consented to the search. The record of the suppression hearing reveals that Judge Raggi found the security sweep to be reasonable but that she did not explicitly address the propriety of what Oguns claims was a second illegal entry, when the agents brought Oguns into his apartment after the security sweep.

On November 15, 1989, a jury convicted Oguns on the counts that charged importation of heroin and possession with intent to distribute heroin. The jury acquitted

Oguns on the conspiracy charge. On January 31, 1990, the court sentenced Oguns to 121 months imprisonment on both the distribution and importation counts, with the sentences to run concurrently, and levied against Oguns a $100 special assessment. On appeal Oguns challenges the admission of evidence seized from his apartment, the admission of out-of-court statements made during a telephone conversation at Oguns' apartment, and the sufficiency of the evidence.

DISCUSSION

A. Evidence Seized From Oguns' Apartment

After Oguns consented to a search of his apartment, agents located and seized papers identifying Oguns and his brother and correspondence bearing the name Bola Williams, the alleged seller in the heroin importation scheme. Oguns argues that this evidence should have been suppressed, because his consent to search the apartment was tainted by two earlier entries that violated his Fourth Amendment rights or, alternatively, because his consent was involuntary. We agree with one of the premises of this argument but not with its conclusion.

At the outset, it bears noting that the agents did not seize any evidence during the first two entries into the Oguns apartment. We consider the propriety of these entries only as they relate to whether Oguns validly consented to the search that ultimately produced evidence used against Oguns at trial.

1. Security Sweep

In considering the legality of the first entry, we begin our analysis with the axiom that warrantless searches "are per se unreasonable, subject to a few well-delineated exceptions." United States v. Vasquez, 638 F.2d 507, 529-30 (2d Cir.1980) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981). One of these exceptions is a security sweep incident to a lawful arrest. The Supreme Court held last term that, following an in-home arrest, officers may conduct a limited security sweep of the premises if they possess a "reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, --- U.S. ----, 110 S.Ct. 1093, 1099-1100, 108 L.Ed.2d 276 (1990). In Buie, the Supreme Court applied a standard of reasonable suspicion to a security sweep conducted after an in-home arrest; the Court did not, however, address whether the same standard applies to security sweeps conducted after arrests made outside of the home.

In this Circuit, we have applied a standard comparable to the reasonable suspicion test announced in Buie in assessing security sweeps incident to arrests outside of the home. In Vasquez, we held that such an entry is permissible

if the arresting officers had "(1) a reasonable belief that third persons [were] inside, and (2) a reasonable belief that the third persons [were] aware of the arrest outside the premises so that they...