U.S. v. Rowell

• Decision Date: 16 May 1990
• Docket Number: D,No. 851,851
• Citation: 903 F.2d 899
• Parties: UNITED STATES of America, Appellee, v. Gerald ROWELL, a/k/a "Jerry or Jerome," Defendant-Appellant. ocket 89-1512.
• Court: U.S. Court of Appeals — Second Circuit

Page 899

903 F.2d 899

UNITED STATES of America, Appellee, v. Gerald ROWELL, a/k/a "Jerry or Jerome," Defendant-Appellant.

No. 851, Docket 89-1512.

United States Court of Appeals Second Circuit.

Argued March 8, 1990.

Decided May 16, 1990.

Lawrence J. Andolina (Harris, Beach & Wilcox, Rochester, N.Y., of counsel), for defendant-appellant.

Bradley E. Tyler, Asst. U.S. Atty., Rochester, N.Y. (Dennis C. Vacco, U.S. Atty. W.D.N.Y., of counsel), for appellee.

Before KAUFMAN, MESKILL and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Gerald Rowell appeals from a judgment of conviction, entered in the United States District Court for the Western District of New York On this appeal, Rowell argues that his conviction must be reversed since the district court erred in finding sufficient probable cause to support issuance of the eavesdropping warrant. For the reasons set forth below, we affirm the judgment of the district court.

(David G. Larimer, Judge ). Rowell pled guilty to one count of possessing marijuana with intent to distribute and two counts of distributing marijuana, all in violation of 21 U.S.C. Sec. 841(a)(1) (1988). He asserts that the district court improperly denied his pre-trial motion to suppress certain evidence obtained through electronic eavesdropping. That evidence was collected pursuant to a state-issued warrant which, according to Rowell, lacked any basis of probable cause.

BACKGROUND

In the Fall of 1986, state and federal law enforcement agents initiated an investigation of Rowell and several others in connection with alleged narcotics activity in Monroe County, New York. On January 12, 1987, the Monroe County district attorney applied to County Court Judge Egan for an eavesdropping warrant authorizing a wiretap on telephones at Rowell's residence and at his business, The Smuggler's Cove Bar and Grill ("The Smuggler's Cove").

The basis for the warrant consisted of affidavits of several law enforcement officials. The affidavit of Rochester Police Officer Earl J. Lergner contained information that Rowell had been convicted of possessing 350 pounds of marijuana in Florida in 1984. Rowell's Florida conviction followed a "reverse buy" in which he purchased marijuana, for $105,000 in cash, from an undercover Palm Beach County police officer. During the transaction, Rowell revealed to the officer that he could regularly distribute over 1,000 pounds of marijuana per week and suggested a long-term supplier relationship with the officer. In addition, the Lergner affidavit described pen register records of telephone calls made to and from Rowell's residence and business telephones. The pen register records revealed that between September 1986 and December 1986, approximately 1,000 outgoing calls were made and 1,000 incoming calls were received on the telephone at Rowell's residence. During the same period, over 2,200 outgoing calls and 200 incoming calls were registered on the telephone at The Smuggler's Cove. In the opinion of Officer Lergner, an experienced drug enforcement agent, the high number of calls exceeded the normal volume for a private residence or small business and was, in fact, consistent with narcotics trafficking. Officer Lergner also observed that at least three calls had been placed in June 1986 from Rowell's residence and business to one Jeffrey Weisberg who, within several months of the calls, was arrested after delivering one pound of highly pure cocaine. Also, at least two calls had been placed from The Smuggler's Cove to Brazil, a frequent port of origin for narcotics shipments to the United States.

The affidavit of Monroe County Deputy Sheriff John Gagne disclosed that a named informant had observed Rowell sell large quantities of narcotics on several occasions in Monroe County. The Gagne affidavit further established that another named informant was present when Rowell had in his possession a large quantity of cocaine in the basement office of The Smuggler's Cove.

The wiretaps authorized by Judge Egan's warrant made clear that Rowell was involved in narcotics trafficking. As the wiretap evidence pointed to an interstate narcotics conspiracy, criminal proceedings were initiated in federal court. On May 26, 1988, a United States Grand Jury, sitting in the Western District of New York, returned an indictment against Rowell and several other individuals. The indictment charged the defendants with thirty-seven counts, twenty-eight of which named Rowell. The charges against Rowell included: participating in a conspiracy to possess with intent to distribute and to distribute cocaine and marijuana; possessing with intent to distribute marijuana; distributing various quantities of marijuana; and intentionally using a telephone to facilitate a conspiracy to possess with intent to Rowell made a pre-trial motion to suppress the wiretap evidence on the ground, inter alia, that the eavesdropping warrant was not supported by sufficient probable cause. Specifically, the defendant argued that since the warrant was issued by a New York state court judge, the district court should apply the more stringent New York standard for probable cause, not the federal "totality of the circumstances" standard. The district court denied Rowell's motion, concluding that probable cause for the warrants existed under either federal law or New York State law.

distribute and to distribute cocaine and marijuana.

Following the denial of his suppression motion, Rowell entered into a plea agreement with the government. Under the terms of the agreement, Rowell entered guilty pleas to one count of possessing marijuana with intent to distribute and two counts of distributing marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). The agreement stipulated that Rowell retained his right to appeal the denial of his motion to suppress the wiretap evidence pursuant to Fed.R.Crim.P. 11(a)(2). On September 26, 1989, the district court sentenced Rowell to 24-months imprisonment on each of the three counts to which he pled guilty. The district court ordered that the three sentences be served consecutively, for a total of 72-months imprisonment. In addition, the court imposed a term of supervised release to follow the period of incarceration, a $25,000 fine, and a $150 special assessment. This appeal followed.

DISCUSSION

I. The Applicable Standard

On appeal, as in the district court, Rowell contends that federal courts should apply state warrant requirements, if they are more stringent than applicable federal requirements, to state-issued warrants. Rowell further argues that New York has rejected the federal standard for probable cause articulated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in favor of the more restrictive Aguilar-Spinelli test. See People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 57, 524 N.E.2d 409, 411 (1988) ("We are not persuaded, however, that the Gates approach provides a sufficient measure of protection, and we now hold that, as a matter of State constitutional law, the Aguilar-Spinelli two-prong test should be applied in determining whether there is a sufficient factual predicate upon which to issue a search warrant."); see also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Accordingly, Rowell asserts that the district court should have applied the Aguilar-Spinelli test in determining whether to admit the wiretap evidence against him and that, under the Aguilar-Spinelli test, the evidence should have been suppressed. We disagree.

In United States v. Pforzheimer, 826 F.2d 200, 202 (2d Cir.1987), we addressed the issue of "whether the state or federal exclusionary rule should be applied in ruling on a motion to suppress evidence in a criminal trial in federal court when the evidence in question was solely the product of a state investigation." We concluded that "federal law should apply to ... federal criminal prosecution[s], even though the underlying investigation leading to prosecution was conducted solely by state officials." Id. at 204 (emphasis added). Similarly, in United States v. Nersesian, 824 F.2d 1294, 1306 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987), we applied federal law in determining the admissibility of evidence obtained under a state-issued warrant which authorized wiretapping by state and federal authorities. As the opinions in Pforzheimer and Nersesian make clear, the appropriate standard of probable cause for determining Rowell's motion to suppress the wiretap evidence is the federal "totality of the circumstances" standard. See Gates, 462 U.S. at 230-32, 103 S.Ct. at 2328.

This conclusion, which flows directly from our prior decisions, is supported by prior decisions of the Supreme Court. See, e.g., Preston v. United States, 376 U.S. Rowell argues that policy considerations weigh in favor of applying more stringent state standards in federal criminal prosecutions. He cites dicta in United States v. Sotomayor, 592 F.2d 1219, 1224-26 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979), that applying the federal standard in the face of a stricter state standard might encourage forum shopping by state authorities. See also United States v. Spadaccino, 800 F.2d 292, 296-97 (2d Cir.1986); United States v. Manfredi, 488 F.2d 588, 598 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974). However, this argument was considered and rejected in Pforzheimer:

                364, 366, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) ("The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.");    Elkins v. United States, 364 U.S. 206, 224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960) ("The

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