U.S. v. Tibolt

• Decision Date: 01 May 1995
• Docket Number: No. 94-2221,94-2221
• Citation: 72 F.3d 965
• Parties: UNITED STATES of America, Appellee, v. William R. TIBOLT, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 965

72 F.3d 965

UNITED STATES of America, Appellee, v.William R. TIBOLT, Defendant, Appellant.

No. 94-2221.

United States Court of Appeals First Circuit.

Heard May 1, 1995.

Decided Dec. 29, 1995.

Anthony M. Cardinale, Boston, MA, with whom Nicholas J. DiMauro, North Reading, MA, and Law Offices of Anthony M. Cardinale, Boston, MA, were on brief, for appellant.

William C. Brown, Attorney, Appellate Division, Department of Justice, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Following his conviction on a money laundering charge, 18 U.S.C. Sec. 1956, in the United States District Court for the District of Massachusetts, William Tibolt appeals two trial court rulings relating to incriminating financial records seized from his residence in a warrantless search.Finding no error, we affirm.

IBACKGROUND

Around mid-morning on July 27, 1992, a security alarm activated in the Dombrowski residence located at 13 Old Salem Path in Gloucester, Massachusetts.As the security alarm company--JK Security--was unable to make telephone contact with the Dombrowski residence to determine whether the alarm had been set off accidentally, it telephoned the Gloucester Police to report the alarm.Officer Joseph Palazzola was dispatched to investigate the alarm report at the Dombrowski residence, which is next door to the Tibolt residence at 11 Old Salem Path.

Both residences are set well back from Old Salem Path and largely concealed from view.Two driveways--separated by a tree and some shrubbery--lead to the Tibolt home.The Tibolt mailbox--bearing "11 Old Salem Path"--is located immediately to the right of the first Tibolt driveway.The Dombrowski mailbox--marked "dombrowski 13"--is located a few feet left of the second Tibolt driveway, more than 60 feet before the driveway entrance to the Dombrowski residence at 13 Old Salem Path.

Upon observing the mailbox marked "13," Officer Palazzola mistakenly entered the second driveway to the Tibolt residence.He checked the exterior of the residence for signs of an attempted break, or burglary in progress.Although he noted no signs of forced entry, Palazzola found an unlocked door on the rear deck.He opened the door and called inside to alert any occupant, but received no response.Given that the police had been requested to investigate the alarm, that a door was unlocked, and that Palazzola had been unable to make contact with anyone inside the house, he reasoned that the alarm might not have been activated accidentally.

Palazzola promptly called for backup, and Officer Thomas Williams arrived within five minutes.Williams likewise drove to the Tibolt residence rather than the Dombrowski residence, because he saw Palazzola's squad car parked next to the Tibolt residence.Williams immediately recognized the Tibolt residence as having been the target of a prior investigation by a Gloucester Police drug task force in which he had participated.Williams was unsure, however, whether the target (viz., Tibolt) of the task force investigation still owned the residence, or whether it was still under investigation for drug-related activities.

Palazzola and Williams decided to make an immediate warrantless entry through the unlocked rear door, then looked about for possible explanations for the alarm (e.g., any occupants, a burglar, "whatever").Their search was limited in scope, eschewing drawers, cabinets and containers.The officers "secured" each room, to rule out the presence of intruders, captives, or injured occupants.After sweep-searching the upper floors, the officers discovered a well-established marijuana growing facility in the basement, then left to obtain a search warrant.¹Later, armed with a warrant, the officers searched the Tibolt premises and seized incriminating financial records which Tibolt subsequently sought to suppress on the ground that the search warrant was invalid because the evidence relied on in the supporting affidavit was itself the fruit of the earlier warrantless search.After hearing, the district court denied the motion to suppress, without elaboration.

Following the verdict, Tibolt moved for a new trial on the ground that he had uncovered "new" evidence relating to the suppression motion which would (1) impeach Palazzola's suppression hearing testimony, (2) suggest that the Gloucester Police deliberately planned to search the Tibolt residence, and (3) demonstrate a Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667(1978), violation.Gloucester Police Department"incident cards," which record the time, date, desk officer, and location of police assignments, disclosed that officers had been called to Old Salem Path on at least fourteen prior occasions to investigate security alarms.The cards reflect that there were three calls to "13 Old Salem Path" and ten others to "Old Salem Path."One card, dating from 1990, indicates that Officer Joseph Palazzola had been sent to the Dombrowski residence to investigate a security alarm.And two cards indicate that a desk officer with the initials "J.P." had dispatched other officers to "Old Salem Path."In addition, an affidavit by Officer Theodore Lemieux, dated January 27, 1994--the day after the Tibolt suppression hearing--and submitted in support of a search warrant application in an unrelated criminal proceeding, stated that

an informant ... has provided information that led to the arrest and indictment of one William Tibolt.In the investigation the informant provided detailed information in regard to the location of an indoor growing operation that Mr. Tibolt had in his home.The informant provided the name, address as well as other persons that were involved in the marijuana growing operation.The informants [sic] also described the home and the interior as well as a room in the center of the basement that [sic] the growing operation was being conducted.(Emphasis added.)

But for the fact that it contains no indication as to the timing of the events described in it, the Lemieux affidavit might conflict with the affidavit submitted in support of the search warrant application of July 27, 1992, seesupra note 1, which described JK Security's call to the Gloucester Police Department, the police response, and the officers' unexpected discovery of marijuana in the Tibolt basement.After hearing, the district court denied the motion for new trial.United States v. Tibolt, 868 F.Supp. 380, 381-83(D.Mass.1994).

IIDISCUSSION

A.Motion to Suppress

Tibolt first challenges the district court's pretrial denial of the motion to suppress the primary evidence of money laundering: the financial records seized from his residence on July 27, 1992.He contends that there was no objectively reasonable basis for believing that a life-threatening burglary was in progress, even assuming that Officer Palazzola reasonably had mistaken the Tibolt residence for the Dombrowski residence.But see infra Section II.B.And he argues that inspection of the exterior of the Tibolt residence revealed no signs of forcible entry, and no open windows or doors.SeeBrief for Appellantat 27-29(citingUnited States v. Erickson, 991 F.2d 529(9th Cir.1993)(suppressing evidence seized in warrantless search of residence where officers investigating burglar alarm observed no indication of forced entry)).

1.Substantive Law

A warrantless search of a private residence is presumptively unreasonable under the Fourth Amendment.SeePayton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639(1980).The government therefore must prove that the initial search came within some recognized exception to the Fourth Amendment warrant requirement.SeeUnited States v. Doward, 41 F.3d 789, 791(1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1716, 131 L.Ed.2d 575(1995).Generally speaking, absent probable cause and exigent circumstances the Fourth Amendment bars warrantless, nonconsensual entries of private residences.SeeUnited States v. Curzi, 867 F.2d 36, 41(1st Cir.1989).²

Probable cause will be found to have been present if the officers at the scene collectively possessed reasonably trustworthy information sufficient to warrant a prudent policeman in believing that a criminal offense had been or was being committed.SeeHegarty v. Somerset Cty., 53 F.3d 1367, 1374(1st Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 675, 133 L.Ed.2d 524(1995);United States v. Zurosky, 614 F.2d 779, 784 n. 2(1st Cir.1979)(finding probable cause where police investigated possible "breaking and entering" at warehouse), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826(1980)(citingBrinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879(1949))."In dealing with probable cause, ... as the very name implies, we deal with probabilities.These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527(1983).

Exigent circumstances exist where law enforcement officers confront a "compelling necessity for immediate action that w[ould] not brook the delay of obtaining a warrant."United States v. Wilson, 36 F.3d 205, 209(1st Cir.1994)(citingUnited States v. Adams, 621 F.2d 41, 44(1st Cir.1980));United States v. Almonte, 952 F.2d 20, 22(1st Cir.1991), cert. denied, 503 U.S. 1010, 112 S.Ct. 1776, 118 L.Ed.2d 434(1992).Although "exigency" determinations invariably are fact-intensive, seeUnited States v. Donlin, 982 F.2d 31, 34(1st Cir.1992), "exigent circumstances" commonly include: "(1)'hot pursuit' of a fleeing felon; (2) threatened destruction of evidence inside a residence before a warrant can be obtained; (3) a risk that the...