U.S. v. Timpani

• Decision Date: 01 December 1981
• Docket Number: No. 81-1164,81-1164
• Citation: 665 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Joseph A. TIMPANI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

665 F.2d 1

UNITED STATES of America, Appellee, v. Joseph A. TIMPANI, Defendant, Appellant.

No. 81-1164.

United States Court of Appeals, First Circuit.

Argued Sept. 16, 1981.

Decided Dec. 1, 1981.

William A. Dimitri, Jr., Newport, R. I., for defendant, appellant.

Victor D. Stone, Atty., U. S. Dept. of Justice, Washington, D. C., with whom Paul F. Murray, U. S. Atty., Providence, R. I., and James H. Leavey, Sp. Atty., North Kingstown, R. I., were on brief, for appellee.

Before CAMPBELL, VAN DUSEN, ^* and BREYER, Circuit Judges.

BREYER, Circuit Judge.

On June 8, 1979, the FBI conducted a coordinated series of searches for contraband and evidence related to loansharking and gambling in Providence, Rhode Island. Pursuant to a warrant, they searched appellant's house. For the first forty-five minutes of the five-hour search, the agents insisted that appellant remain with them while they searched. They refused to allow him to telephone his lawyer or anyone else, lest he issue a warning before other searches in the series were underway. During this time, the agents found some records in the bedroom closet. Appellant then apparently tried to dissuade the agents from searching further by saying, "You've got everything; you got more than you want; more than you came here for. You've got it all." The agents looked further and found a sawed-off shotgun. Appellant again stated, "You've got everything. There's nothing else." The agents then found three loaded handguns wrapped up in socks. The agents took the weapons to their car. They discovered by phone that appellant had a criminal record. They obtained a search warrant for the guns and then seized them. Subsequently, appellant was convicted of possessing an unregistered sawed-off shotgun ¹ and unlawfully (as a prior convicted felon) possessing firearms. ² Appellant challenges these convictions on several grounds.

A. Appellant claims that the series of events just described shows violations of the Fourth, Fifth and Sixth Amendments to the Constitution, in that he was unreasonably detained, deprived of his right to counsel, and not given Miranda warnings, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He claims that his statements, set out above, should not have been admitted into evidence.

Several recent Supreme Court cases foreclose appellant's lines of argument. Michigan v. Summers, --- U.S. ----, ----, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981), explicitly states that during searches for contraband, "it is constitutionally reasonable to require (the) citizen to remain while officers of the law execute a valid warrant to search his home." One of several rationales that the Summers Court advanced to justify this rule is the need to minimize the risk of "sudden violence or frantic efforts to conceal or destroy evidence." --- U.S. at ---- - ----, 101 S.Ct. at 2594-2595. The nature of the criminal behavior underlying the warrant-organized loansharking ³-and the evidence previously gathered through court-authorized wiretapping, are sufficient to bring this case within both the letter and the rationale of the Summers holding.

The fact that the agents initially prevented appellant from calling his lawyer does not change the result under the circumstances present here. There is no evidence that this restriction was related in any way to a desire to deprive appellant of legal counsel. Rather, as the trial court found, the restriction formed a necessary part of a more general restriction, namely, that appellant phone no one until other coordinated searches were underway. Given the organized nature of the underlying crimes, that instruction seems reasonable. Moreover, the restrictions on appellant's freedom were carefully tailored to fit the legitimate need that gave rise to them. They lasted for forty-five minutes of a five-hour search. As soon as the risk of premature warning disappeared, the agents told appellant he was free to telephone and to leave. Further, there were no special circumstances present here calling for the presence of a lawyer. The agents did not intend to arrest appellant. He was not placed under arrest. No arrest warrant had been issued against him. There had not yet been initiated any "judicial proceeding" that would ordinarily call into play a "right to counsel." Brewer v. Williams, 430 U.S. 387, 398-99, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). The agents made no effort, overt or subtle, to interrogate appellant or to elicit from him in any way any incriminating statements. Cf. United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Hence, we see no basis for a Fifth or Sixth Amendment claim, and, as far as the Fourth Amendment goes, we see no reason to depart from the Summers holding that the agents are to have "unquestioned command of the situation." --- U.S. at ----, 101 S.Ct. at 2595.

The fact that appellant was neither arrested nor interrogated also seems sufficient to dispose of his Miranda claim. The Supreme Court recently held that Miranda safeguards come into play when a person in custody is subjected to either questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Court noted that interrogation "must reflect a measure of compulsion above and beyond that inherent in custody itself." Id. at 300, 100 S.Ct. at 1689. Indeed, Miranda held:

The fundamental import of the (Fifth Amendment) privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred.

Miranda v. Arizona, 384 U.S. at 478, 86 S.Ct. at 1630.

In Innis, the Supreme Court held that the following facts did not show "interrogation" or its "functional equivalent": Defendant was arrested in connection with two crimes-an assassination and a robbery-in each of which a sawed-off gun had been used. After receiving Miranda warnings, he stated he wanted to speak to a lawyer. He was then placed in the back of a police car. His counsel was not present. Two policemen in the front of the car spoke to each other about how unfortunate it would be if a child found the shotgun (presumably the murder weapon). Defendant, overhearing the conversation, told them the gun's location. Defendant's statements were held admissible. Appellant's case here is weaker than Innis. He was not under arrest. There is no evidence of any agent statements made within his hearing. Rather, appellant's statements, if elicited at all, were elicited only by the discovery (or likely discovery) of incriminating items during the course of a lawful search. We cannot distinguish this case from Innis.

B. Appellant claims that the search warrant was issued without probable cause. We do not agree. The search warrant was based on an affidavit of an FBI agent submitted to a magistrate on June 6, 1979. That affidavit incorporated two earlier affidavits (signed in March and April), which had been submitted to obtain permission to use electronic surveillance. The information contained in the three affidavits, obtained from several sources and from electronic surveillance, provides strong grounds for believing that several persons with whom appellant was associated were engaged in gambling and loansharking, with accompanying physical violence and murder. The information connecting appellant directly with this activity is of four sorts. First, there is evidence that appellant spent considerable time talking to these other persons on the phone and meeting them at the club where most of the illegal activity was planned or took place. ⁴ Second, there are several conversations involving appellant's use of vague, general words such as "the thing," which the agent swears, in context, must be taken as showing direct involvement in the criminal activity. ⁵ Third, there are conversations which use slang terms commonly used (according to the agents) by loan sharks and gamblers and which suggest direct involvement. For example, appellant spoke to the others about seeing a man who wanted "three dimes" (evidently $3,000). ⁶ Finally, there are more direct links provided by a source who heard the others involved in loansharking say that "Joe Timp" was keeping the "book." And, the agent swears he overheard conversations between appellant and others in which they settled up their gambling accounts. On the basis of these and similar allegations, two district court judges found that the first two affidavits provided probable cause for authorization of electronic surveillance, a fact to which we pay deference. See Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 30 L.Ed.2d 749 (1969); United States v. Melvin, 596 F.2d 492, 495 (1st Cir.), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979). After reviewing all anew we conclude that, when read in a common sense manner, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), they provide probable cause for the search. ⁷

C. Appellant argues that the search warrant was insufficiently specific. The warrant allowed seizure of

... any and all records relating to extortionate credit transactions (loansharking), including lists of loan customers, loan accounts, telephone numbers, address books, lists of criminal associates, records of income, bank statements, records of deposits, cash and checks which are evidence of violations of 18 U.S.C. Sections 892, 893, 894, and 371, gambling paraphernalia and gambling records including lists of bettors, telephone numbers, line sheets, address books, bet slips, tally sheets, bottom sheets, accounts, bank statements, deposits, cash and checks which are evidence of violations of 18 U.S.C. Sections 1084, 1952, 1955 and 371.

Appellant correctly states that...