U.S. v. Thomas
| Decision Date | 08 January 1990 |
| Docket Number | D,277,Nos. 236,s. 236 |
| Citation | 893 F.2d 482 |
| Parties | UNITED STATES of America, Appellee, v. Paul THOMAS and Errol MacDonald, Defendants-Appellants. ockets 89-1262, 89-1263. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen Fishbein, Asst. U.S. Atty. (Benito Romano, U.S. Atty. for the S.D.N.Y., Mary Lee Warren, Asst. U.S. Atty., New York City, on the brief), for appellee.
Murray Cutler, Brooklyn, N.Y., for defendant-appellant Paul Thomas.
Noah Lipman, New York City, for defendant-appellant Errol MacDonald.
Before OAKES, Chief Judge, KEARSE and ALTIMARI, Circuit Judges.
Defendants Paul Thomas and Errol MacDonald appeal from final judgments entered in the United States District Court for the Southern District of New York after a jury trial before Robert J. Ward, Judge, convicting each of them on one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 812 and 841(b)(1)(C) (1982 & Supp. V 1987), id. Sec. 841(a)(1) (1982), and 18 U.S.C. Sec. 2 (1982); and one count of using or carrying a firearm
during a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c) (1982 & Supp. V 1987) and id. Sec. 2. Thomas was sentenced principally to consecutive prison terms of 63 months and five years on the possession and weapon counts, respectively, to be followed by five years' supervised release. MacDonald was sentenced principally to consecutive prison terms of 51 months and five years on the possession and weapon counts, respectively, to be followed by five years' supervised release. On appeal, Thomas contends that he is entitled to a new trial because of an error with respect to the jury charge. MacDonald contends principally that evidence against him should have been suppressed because it was seized in violation of his rights under the Fourth Amendment to the Constitution. We conclude that the latter contention may have merit, and we remand to the district court for further proceedings with respect to MacDonald. We affirm the conviction of Thomas.
The trial evidence leading to defendants' convictions may be summarized briefly. Taken in the light most favorable to the government, it showed the following.
On the evening of September 8, 1988, members of the New York Drug Enforcement Task Force ("Task Force"), acting on information received from a confidential informant, conducted a surveillance of apartment 1-O at 321 Edgecombe Avenue in Manhattan ("321 Edgecombe"). The agents observed a steady succession of cars, many of them with out-of-state license plates, arrive, pause while passengers briefly visited apartment 1-O, and then depart. One of the emerging passengers placed something under the gas cap of his car before departing. The occupants of another car informed the agents that narcotics were being sold in apartment 1-O.
At 9:40 p.m., James Agee, a United States Drug Enforcement Administration special agent assigned to the Task Force, sought to make an undercover buy of narcotics in apartment 1-O. He entered 321 Edgecombe, knocked on the door of the apartment, and was admitted. Inside the apartment, which was well lit, Agee saw six men, including Thomas and MacDonald. Thomas was seated to Agee's right holding a cocked nine millimeter pistol; the pistol was pointed downward but in Agee's direction. MacDonald was seated on a couch, counting a large amount of cash. One or two feet away from the couch was a television set with a .357 magnum revolver on it; the .357 was within the reach of MacDonald.
Agee also saw marijuana on a couch and bags of marijuana and cocaine on a table. He requested $5 worth of marijuana. One of the other men handed him a bag of marijuana; Agee paid him with a $5 bill whose number had been prerecorded by the Task Force. Agee then left; he had been in the apartment for two or three minutes.
About 10 minutes later, seven members of the Task Force forcibly entered apartment 1-O. They found five of the men Agee had seen there earlier, including Thomas and MacDonald. The five were arrested, and Thomas and MacDonald were indicted on the charges described above. From the apartment, the agents seized marijuana, cocaine, the two guns, and various narcotics paraphernalia.
Prior to trial, MacDonald moved to suppress the evidence seized by the Task Force agents from apartment 1-O on the ground that the warrantless entry into the apartment violated his rights under the Fourth Amendment. The government opposed the motion, contending that MacDonald had no standing and that, in any event, the entry was warranted by exigent circumstances. At an evidentiary hearing, the proof included the following.
When arrested, MacDonald had in his possession a key to the front door at 321 Edgecombe and a key to apartment 1-O. The tenant of apartment 1-O was one Winston Watson, and the utilities for the apartment were in his name. MacDonald testified Sammy owned everything in the apartment, including the narcotics and the firearms. MacDonald had on occasion kept up to two pounds of marijuana there; he sold or gave smaller quantities to others, though he did not distribute from that location.
that since May 1988, Watson, a/k/a "Sammy," had allowed him to use the apartment for assignations with a girlfriend. MacDonald had been in the apartment 5-10 times and had slept there overnight three or four times on a pull-out couch. He kept there soap, a toothbrush, and "maybe some clothes." MacDonald gave Sammy $40-50 each month toward the rent, which was more than $200 a month, and paid for collect telephone calls he received there
Sammy gave MacDonald keys to the apartment whenever MacDonald planned to sleep there. On September 8, MacDonald expected to meet his girlfriend in the apartment at about 11 p.m. and had arrived early in order to get the keys from Sammy. He did not know two of the men who were there when he arrived, and Sammy did not introduce them; but MacDonald assumed that they would leave before his girlfriend arrived.
Agent Agee testified on the subject of MacDonald's standing as follows. The apartment had only one closet; there were no clothes in it. In the kitchen area there was a refrigerator; it had nothing in it but an ice tray. There was a stove; but there were no pots or other cooking utensils. In the bathroom, there were no toothbrushes, razors, or other toiletries. In the living room there were two love seats; but there was no pull-out couch.
With respect to the government's contention that exigent circumstances justified the warrantless entry, Agee testified as follows.
In May 1988, a confidential informant told Task Force agents that she had recently visited apartment 1-O at 321 Edgecombe and spent several hours there. She had observed that narcotics, including marijuana and cocaine, were being stored there. In addition, she was taken to a third floor apartment in the building, in which more narcotics were stored. The informant had provided reliable information in the past. Based on her May 1988 statements, six Task Force agents commenced surveillance of 321 Edgecombe on the evening of September 8, 1988.
During the course of this surveillance, the agents observed a succession of cars, many with out-of-state license plates, drive up to the building, double park, and wait as passengers entered the building and then returned a short time later. Between 6:50 p.m. and 9:40 p.m., some 15 to 20 persons entered and exited 321 Edgecombe in this fashion. Agee followed several of them into the building and observed them enter apartment 1-O. One person who exited the building after a brief visit placed something inside the gas cap of his car before driving off.
At about 9:30 p.m., the agents followed one car upon its departure and stopped it several blocks away, out of the range of vision from 321 Edgecombe. The occupants of this car told the agents that narcotics were being sold in apartment 1-O and that sales were not being limited to regular customers. Following this conversation, Agee telephoned his supervisor at the Task Force's Manhattan office, and it was decided that Agee would go to apartment 1-O to make a controlled purchase of marijuana using prerecorded money.
At about 9:50 p.m., Agee, followed at a distance by another agent, entered the building through its front door, whose lock was broken. Agee knocked at the apartment door and was admitted. He observed that the apartment consisted of two rooms: a living room with a kitchen area, and a bathroom. Each room had one window; the windows faced Edgecombe Avenue. The only door to the apartment was its front door.
As at trial, Agee testified that there were six men inside, including Thomas pointing the cocked nine millimeter pistol in Agee's direction, and MacDonald counting Agee then, with his supervisor who had arrived on the scene accompanied by six additional agents, formulated a plan for an agent to go to apartment 1-O to talk with the person who had sold Agee the marijuana and to ask for consent to search the premises. No effort was made to contact an Assistant United States Attorney to obtain a search warrant; nor did the agents discuss the possibility of obtaining a warrant.
cash on a couch within reach of the .357 magnum revolver. Agee further testified that he smelled marijuana burning in the apartment and that he saw bags of what appeared to be marijuana and cocaine on a table. Agee purchased a bag of marijuana for $5 and left. He did not see the agent who had shadowed him into the building.
At approximately 10 p.m., Agee returned to apartment 1-O with six other agents. The supervisor and the other agents remained outside. With guns drawn, Agee's group knocked on the door of the apartment and identified themselves as police officers. They received no response but heard sounds of movement and shuffling of feet; t...
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