United States v. La Monte

• Decision Date: 03 August 1978
• Docket Number: Crim. No. 77-438.
• Citation: 455 F. Supp. 952
• Parties: UNITED STATES of America v. John Donald LA MONTE and House of Sounds, Inc.
• Court: U.S. District Court — Eastern District of Pennsylvania

455 F. Supp. 952

UNITED STATES of America v. John Donald LA MONTE and House of Sounds, Inc.

Crim. No. 77-438.

United States District Court, E. D. Pennsylvania.

August 3, 1978.

Edward S. G. Dennis, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Donald J. Goldberg, Philadelphia, Pa., for defendant.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Defendants, John La Monte and House of Sounds, Inc. ("HOS"), have been charged in an 149 count indictment with racketeering (18 U.S.C. §§ 1961 et seq.), wire fraud (18 U.S.C. § 1343) and copyright infringement (17 U.S.C. §§ 101 et seq.). Defendants have moved to suppress evidence seized as a result of four separate searches conducted by agents of the FBI.

Each of the four searches occurred within a two week period in February, 1977. The first of these involved a warrantless seizure of a tractor-trailer carrying records from HOS. The other three searches were of various business premises controlled by HOS and were conducted pursuant to three separate search warrants. A four day hearing in connection with the defendants' motion to suppress was held by the Court. At the hearing, the Court received evidence and heard argument concerning these searches. For the reasons hereinafter set forth, the Court will deny all of the defendants' motions.

Factual Background

The investigation which gave rise to these proceedings began in New York as the result of a complaint made to the FBI by the President of Bearsville Records, who reported that counterfeit recordings of the album "Runt" by Todd Rundgren had appeared on the market. The FBI traced the counterfeit recordings to Scorpio Music Distributors, Inc. ("Scorpio"), a record outlet in Croyden, Pennsylvania. A search of the business premises of Scorpio was conducted on February 8, 1977.¹ This search uncovered approximately 50 counterfeit "Runt" albums and business records which showed that during the period from January, 1976 through December, 1976, Scorpio had received over 41,000 "Runt" albums from HOS. These business records revealed that approximately 10,000 "Runt" albums had been shipped within the preceding two months.

As a result of this information, an investigation of HOS was undertaken. During the course of this investigation, a surveillance led to the seizure, on February 10, 1977, of an Oneida tractor-trailer which contained suspect records. The trailer was taken by the FBI to the Philadelphia Naval Base where it was secured. A warrant to search the trailer was obtained on February 11, 1977 and the trailer was searched on February 21, 1977.

The defendant, John La Monte, was arrested on the evening of February 10, 1977. A search warrant was then obtained for the HOS warehouse at Quarry and Hamilton Streets in Darby, Pennsylvania. The search of the warehouse in Darby was commenced on February 11, 1977 and during the search, approximately 160,000 records were seized. Further information revealed two other locations where it was believed the defendant had stored allegedly counterfeit records, labels and other related evidence. Based upon this information, a warrant was issued on February 11, 1977 to search James Enterprise, Ltd., Second and Main Streets ("James"), and on February 23, 1977, a warrant was issued to search "Rear # 10 North 9th Street "("9th Street"), both premises located in Darby, Pennsylvania. The James search commenced on February 11, 1978 and the search of 9th Street commenced on February 23, 1977.

I. Seizure and Search of the Oneida Tractor-Trailer.

On February 10, 1977, a confidential source who was an employee of HOS advised the FBI that the defendants were removing unusually large quantities of records from the HOS warehouse at Quarry and Hamilton Roads in Darby, Pennsylvania, and that these were not shipments in the ordinary course of business. Independent FBI surveillance revealed an Oneida Motor Freight truck leaving the HOS warehouse and arriving at the Oneida terminal in Pennsauken, New Jersey at approximately 2:45 p. m. on the afternoon of February 10, 1977. An Oneida employee stated to the FBI that the trailer was to remain at the terminal until February 28, 1977 and that it contained HOS recordings.

At 3:15 p. m. on February 10, 1977, HOS telephoned Oneida and ordered the shipment be returned immediately to the HOS warehouse. On the return trip, on February 10, 1977, the trailer was seized by the FBI in Philadelphia just after it had crossed the Walt Whitman Bridge and was taken to the Philadelphia Naval Base. The next day, February 11, 1977, a warrant was obtained for the search of the trailer. The search was not made until February 21, 1977. In seeking the admission of evidence produced by this search, the government relies upon the doctrine of "exigent circumstances," Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and does not rely upon the search warrant which was obtained the day after the seizure but before the search was conducted. We find that the facts in the instant case establish probable cause and presented the FBI with the "exigent circumstances" necessary to justify the warrantless seizure of the trailer. We reject, however, the contention of the government that the doctrine of exigent circumstances provides sufficient justification under the circumstances of this case for a warrantless search conducted on February 21, 1977, more than ten days after the seizure of the trailer. Under the facts of this case, to have seized the trailer and then to delay the warrantless search of the trailer more than ten days is clearly an unreasonable search pursuant to the doctrine of exigent circumstances.

The Supreme Court in Chambers, 399 U.S. at 51, 90 S.Ct. 1975, relying on Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925), held that where probable cause exists to seize an automobile, a search may be made without a warrant where the car is movable and the evidence sought may be lost in the time it would take to secure a warrant. Chambers extended the exigent circumstances doctrine to include a later search at the police station. 399 U.S. at 52 and n. 10, 90 S.Ct. 1975. However, warrantless searches permissible under the doctrine of exigent circumstances are not without limits. As stated by the Third Circuit in United States v. Valen, 479 F.2d 467, 471 (3d Cir. 1973), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974), "Chambers makes clear that the right to search which attaches at the time of seizure, continues to exist for a reasonable time after the seizure." See United States v. Vento, 533 F.2d 838, 866 (3d Cir. 1976); United States v. Dento, 382 F.2d 361, 366 (3d Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 307, 19 L.Ed.2d 299 (1967); cf. Mincey v. Arizona, ___ U.S. ___, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Thus, we are faced with two separate determinations, first whether exigent circumstances existed to permit the warrantless seizure, and second, whether pursuant to this doctrine the warrantless search was conducted within a reasonable time after the seizure.² See United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 2486, 53 L.Ed.2d 538 (1977).

The Third Circuit in Valen established a two-prong test to determine the existence of exigent circumstances: (1) probable cause to make the search; and (2) reasonable possibility of the agent's loss of dominion and control over the object to be searched and the consequential loss of the contraband. 479 F.2d at 470.

In the instant case, probable cause existed for the FBI to believe that the trailer contained contraband.³ Information that the defendants were engaged in a massive record counterfeiting operation was corroborated by several sources. The seizure in the instant case also satisfied the second prong of the Valen test, i. e., a reasonable possibility of loss of dominion over the object of the seizure. While defendants argue that since the agents were aware of the destination of the trailer, no danger of loss of dominion existed, we disagree. First, the FBI had no way of knowing that the destination revealed by the Oneida employee was correct (the previous information concerning the length of the trailer's stay at the terminal had proven incorrect) and second, even if correct, the destination could have been changed in route — especially in light of the defendants' apparent awareness of the FBI investigation.⁴

The second question in connection with the application of the doctrine of exigent circumstances is whether a warrantless search made more than ten days after the warrantless seizure is reasonable.⁵ An examination of the rationale behind the allowance of a subsequent search based on Chambers compels us to conclude that a warrantless search conducted more than ten days after seizure, based on the mobility exception to the warrant requirement, absent compelling circumstances not present in this case, is not reasonable.

In considering the reasonableness of the warrantless seizure and search in Chambers, the Supreme Court found:

It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner's convenience and the safety of his car to have the vehicle and the keys together at the station house.

399 U.S. at 52 n. 10, 90 S.Ct. at 1981.

The rationale justifying a warrantless search pursuant to the doctrine of exigent circumstances is certainly not present in this case where the FBI waited more than ten days before conducting the search after it had secured the vehicle. Presented with an unexplained delay of this magnitude, we find that the warrantless search was not reasonable.

This situation is not unlike that presented to the Supreme Court in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), in which ...