United States v. Guarino

• Decision Date: 12 February 1986
• Docket Number: Crim. No. N-85-56 (TFGD).
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. James GUARINO.

629 F. Supp. 320

UNITED STATES of America v. James GUARINO.

Crim. No. N-85-56 (TFGD).

United States District Court, D. Connecticut.

February 12, 1986.

Peter A. Clark, Asst. U.S. Atty., New Haven, Conn., for the Government.

Hugh F. Keefe, Lynch, Traub, Keefe & Snow, New Haven, Conn., for defendant.

RULING ON DEFENDANT JAMES GUARINO'S MOTION TO SUPPRESS EVIDENCE AND MOTION TO SUPPRESS STATEMENTS, ADMISSIONS, AND/OR CONFESSIONS

DALY, Chief Judge.

On November 7, 1985, a federal Grand Jury returned a two count indictment charging defendant James Guarino with unlawful distribution of cocaine on or about August 22, 1985 and possession with intent to distribute cocaine on or about October 9, 1985 in violation of 21 U.S.C. § 841(a)(1). Defendant thereafter moved to suppress evidence pertaining to the October 9, 1985 events and allegedly seized in violation of his Fourth and Fourteenth Amendment rights and statements, admissions, and confessions allegedly obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights.¹ An evidentiary hearing was held on January 7, 1986 and January 10, 1986, where the Court heard the testimony of Federal Bureau of Investigation (F.B.I.) special agents William P. Dion and Lionel S. Baren, and of defendant, defendant's mother Mrs. Adeline Guarino, and brother Philip Guarino. At the close of the evidence, the Court asked the parties to submit proposed findings of fact and conclusions of law. Having reviewed these submissions and the evidence presented at the hearing, the Court holds that defendant's constitutional rights were violated and accordingly suppresses the evidence, statements, admissions and/or confessions at issue. In support of its decision, the Court enters the following findings of fact and conclusions of law.

FINDINGS OF FACT

During the summer months of 1985, a special agent for the F.B.I., Lionel Baren, and a confidential source, Dominic Ferraro, investigated several drug offenses including those allegedly involving the defendant James Guarino. Ferraro, for example, allegedly purchased cocaine from the defendant on August 22, 1985. Thereafter, the defendant and Ferraro conversed on several occasions and eventually arranged an October 9, 1985 drug transaction in which defendant would deliver to Ferraro a kilo of cocaine in exchange for $47,000. The transaction was to take place at a two-family house located at 68 Barclay Street, New Haven, Connecticut, defendant's residence and also the home of defendant's mother and brother. While agents for the F.B.I. and Ferraro contemplated that the sale would take place outside of the home, Ferraro first was to enter the Guarino residence wearing a visor-type hat and then, as he left to purportedly get and bring to defendant the $47,000, was to remove the hat if he had in fact seen a kilo of cocaine inside defendant's home.

On October 9, 1985, at approximately 6:00 P.M., Ferraro, wearing a body recorder, transmitter, and visor-type hat entered defendant's home after approximately four to six armed F.B.I. agents in four to six vehicles had stationed themselves in the neighborhood. At approximately 6:15 P.M., defendant came out onto the front porch of his home and began descending the stairs as Ferraro exited the house to obtain the $47,000 he had indicated to the defendant was in the trunk of his car. While walking toward his car Ferraro signalled with his visor. At least four or five FBI agents converged in front of the Guarino residence with guns drawn. Defendant testified that one agent with a shotgun aimed directly at him told him not to move or he would "blow his head away". At this time, Philip Guarino was observed standing in the front door and was ordered out of the house. Special Agent Stubing handcuffed the defendant while Special Agent Baren handcuffed Philip Guarino, after having forced him to the ground. Philip Guarino, according to Agent Baren's testimony, appeared "very frightened, very anxious, very nervous".

Another F.B.I. agent had now pulled up in front of the Guarino home for the purpose of taking the informant Ferraro away. Moments later, after the defendant and his brother had been placed in custody, Baren stepped over to a now hand-cuffed Ferraro who advised Baren that what he was looking for was "just inside the door to your left before you enter the apartment". Neither an arrest warrant nor a search warrant had been applied for at this point, but the Guarino brothers had been placed in what Agent Baren termed "investigative detention." No Miranda warnings were given, and Special Agent Dion was dispatched to conduct a "protective sweep" of the house. Eventually nine agents arrived at the scene and all nine agents entered the house throughout the evening that was to follow.

During Special Agent Dion's initial protective sweep of the Guarino residence, he encountered with his gun drawn an elderly woman, the defendant's mother who owned the two-family house and who had been resting in the bedroom. Mrs. Guarino testified that she was scared and at some point was asked if she was on dope. She replied that she does not take dope, nor did she smoke or drink. Having made sure the defendant and his brother were securely in custody, Special Agent Baren joined Special Agent Dion in conducting the protective sweep. They looked into every room and also under the beds. Special Agent Baren testified that he identified himself to Mrs. Guarino and told her the agents were there because they suspected contraband was in the residence. No one other than Mrs. Guarino was found in the home and the protective sweep, necessary perhaps to secure the home, failed to produce any cocaine. Special Agent Baren testified that they were in fact concerned about the cocaine during the protective sweep, specifically that no one was "standing over a toilet dumping two pounds plus of white powder and flushing the toilet".

The sweep concluded and Special Agent Baren, no longer concerned that there was any threat, went outside and joined Special Agent Stubing in escorting James and Philip Guarino into their home. Philip Guarino, still handcuffed with his hands behind him, was brought into the kitchen where his mother eventually joined him and a special agent who remained with them throughout much of the evening. The defendant, also still similarly handcuffed, was brought into the living room from where he could see his mother visibly shaken and often crying. Shortly after being brought into the house, Philip's handcuffs were removed. According to Agent Baren's log, compiled a day later and without notes, the defendant's handcuffs were removed at 6:27 P.M. Baren's log contained various times, some of which Baren testified he remembered from having glanced at his watch and others of which he reconstructed based on approximate time lapses after he had glanced at his watch. Although the time noted for removal of defendant's handcuffs was such a reconstruction, it is undisputed that defendant had been handcuffed for approximately twelve minutes.

After defendant's handcuffs were removed, Agent Baren testified that he informed the Guarinos "they were free to move about the apartment or leave as long as they did not interfere with any search which may ensue". At approximately 6:40 P.M. an agent told the defendant that a search warrant had been applied for, despite the fact that no application for a warrant had yet been made. During this early part of the evening there were five or six agents at any one time in the house. Agent Baren did not give the Guarinos a time as to how long the agents would remain in the home, but the defendant testified that the agents said they would stay all evening, if necessary, until a search warrant had been obtained and that, until that time, no one would be going anywhere. Defendant further testified that no one advised him he was free to leave. Philip Guarino likewise testified that he never felt free to leave and both he and the defendant testified that when the phone rang an agent would answer it. Later in the evening, when the lights went out apparently due to a power failure, Philip Guarino felt it necessary to ask permission of the agent sitting with him in the kitchen to wind and set an alarm clock in his bedroom. The agent said yes, but called to another agent to inform him that Philip was going into the bedroom. Throughout the early part of the evening, James Guarino sat on the couch with agents to his left and right, was questioned, and, although the agents' guns were no longer drawn, never felt as if he "had any freedom".

Despite Ferraro's earlier statement to Agent Baren that what they were looking for was just inside the door to your left before you enter the apartment, Baren never looked there for the cocaine nor did he have any other agent look there for the cocaine. Rather, according to Baren, at approximately 6:48 P.M. while the defendant was seated in the living room with Agent Baren to his right, Special Agent Genova present, and a Drug Enforcement Agency agent and other agents coming in and out of the room, defendant indicated that he knew why they were there. Defendant then walked towards the front door, passed into the hallway, and pointed to a black plastic bag that was sitting atop a chest of drawers. Agent Baren testified that defendant was "asked what the bag contained" to which defendant "explained that it contained cocaine". Absent that explanation, there is no evidence that would indicate that any of the agents knew the cocaine was in a black bag or on top of the dresser. Additionally, there is no evidence that one would know or have probable cause to believe the black bag contained cocaine, absent defendant's purported explanation. The bureau on which the cocaine rested contained personal belongings of the Guarino family and, according to Agent Baren, was located in an area "closest to the Guarino apartment and the people going to and from the upstairs would have no...