US v. Giannetta

• Decision Date: 14 April 1989
• Docket Number: 86-00063-B-04.,Crim. No. 86-00035-P-01
• Citation: 711 F. Supp. 1144
• Parties: UNITED STATES of America v. James GIANNETTA.
• Court: U.S. District Court — District of Maine

711 F. Supp. 1144

UNITED STATES of America v. James GIANNETTA.

Crim. Nos. 86-00035-P-01, 86-00063-B-04.

United States District Court, D. Maine.

April 14, 1989.

William H. Browder, Jr., Asst. U.S. Atty., Portland, Me., for U.S.

Judy Potter, University of Maine Law School, Portland, Me., for James Giannetta.

MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

GENE CARTER, District Judge.

Defendant in this action pled guilty on December 5, 1986, and March 12, 1987, to charges of conspiracy to possess with intent to distribute approximately two kilograms of cocaine and to import into the United States approximately 8000 pounds of hashish in violation of 21 U.S.C. §§ 841(a)(1), 846, 952(a), 960(a)(1), (b)(2), and 963 and 18 U.S.C. § 2. On February 26, 1988, this Court suspended the imposition of sentence and placed Defendant on probation for a period of five years

Upon the usual terms and conditions of probation and upon the following special condition: (1) that the Defendant shall, at all times during his period of probation, readily submit to a search of his residence and of any other premises under his dominion and control, by his supervising probation officer, upon the officer's request.

Judgment, Docket Item 18 (February 29, 1988). After the sentencing, Defendant's Probation Officer, Vincent Frost, provided Defendant with a copy of the conditions of probation and explained each one to him.

Within a few weeks, Probation Officer Frost became somewhat suspicious of Defendant for several reasons. First, a disclosure of assets listed numerous vehicles and a boat although it had been represented at sentencing that Defendant had no assets with which to pay a fine.¹ In the course of surveilling Defendant's house, as part of his mandated supervision of Defendant, Frost also noted and investigated a brand new BMW automobile. He learned that Defendant had been heavily involved in its purchase by his unemployed roommate, Peter Boucher, and that Defendant's father had loaned Boucher the money for the car. On March 25, 1988, Probation Officer Frost received information from South Portland Police Detective Reed Barker that an almost identical BMW, registered to Boucher's grandfather but driven primarily by Boucher, had been reported stolen in Westbrook. Barker suspected that the claim had been false and, having learned that Defendant was Boucher's roommate, sought information from Frost. Subsequently, Barker informed Frost that Defendant's Corvette had been stolen and found stripped and that Defendant had collected the insurance and then bought the salvage rights to the car. Probation Officer Frost said he and Barker had become suspicious of some sort of fraudulent insurance scheme when they figured out that Boucher had bought a brand new BMW identical to one that he regularly used shortly before the latter car was stolen and then found stripped. Frost testified that the information on the Corvette just pointed to a possible scheme

to either own the car or have a friend own a car and then have the car reported stolen and, in the meantime you strip all of the major articles off that car and dump the car and then collect the insurance. ... And then you claim salvage, which you would only have to pay sometimes less than a thousand dollars for salvage rights to the car. You get the car back and then put the parts back on it and reconstruct the car.

Suppression Hearing Tr. at 45. Later Barker reported to Frost that he had spotted what he thought was a stripped car under a tarp on a car carrier in front of Defendant's house and that there had been a theft of four wheels from the BMW that Boucher had bought with Defendant's involvement at Classic Olds.

Barker also informed Frost in March that security officers at Filene's, a retail department store in Newington, New Hampshire, thought that Defendant might be involved in some sort of fraudulent scheme concerning the purchase and return of merchandise. Frost went to New Hampshire in May, and Filene's personnel identified Defendant from a photo spread as having been in the store. Defendant had not received permission to go to New Hampshire, so his presence there would be a violation of the conditions of his probation.² See Exhibit 3, Condition 2.

In the course of his surveillance of Defendant, Probation Officer Frost also noticed Boucher and two others entering a Pontiac Fiero which he had not seen before. Investigation showed that it had been purchased from a dealership in Concord, New Hampshire, and that Defendant had been at the dealership twice in April, again without permission, and had cosigned a car loan application. In examining the loan application, Frost noted that Defendant had represented himself as the owner of Leisure Leasing in Canton, Massachusetts, with an annual salary of $75,000. Although Defendant had indicated to Mr. Frost that he hoped to go into the car rental business, he had not reported such a job or any such salary in any of his monthly probation reports, and he had not filed a 1987 income tax return because he had not had a job or an income. Frost reasonably suspected, therefore, that Defendant had made a fraudulent loan application.

Probation Officer Frost testified that in May 1988, after Frost had told Defendant he needed a court order to travel to Massachusetts, Defendant leaned over closer to him and whispered, "Why don't you close the door of your office and tell me what I have to do." Frost interpreted Defendant's statement as an attempted bribe.

Probation Officer Frost also determined through telephone toll records and prison telephone recordings that Defendant had talked several times without permission to his codefendant, Biagio Barone, who was imprisoned at FCI Loretto. Probation Condition 10 provides that Defendant shall not associate with any person convicted of a felony unless granted permission to do so by a probation officer, and no permission had been given for such communications.

On June 13, 1988, during a surveillance, Probation Officer Frost noticed Defendant driving a Jeep Cherokee. Defendant's license had previously been suspended, so he was committing a crime by driving, in violation of probation condition 1. Frost reported the incident to the Falmouth Police and an arrest warrant was issued for Defendant.

In mid-June, Probation Officer Frost also learned from Robert Reno, a defendant in this court and a Government witness, that he had seen Defendant in Florida in March and that Defendant always carried a gun. Defendant had not received permission to travel to Florida in March, and possession of a firearm by a felon is a violation of the law.

On June 30, 1988, in possession of all this information, Probation Officer Frost went to Defendant's house with South Portland police officer Reed Barker and conducted a two- to three-hour search. In the course of the search, Frost seized a large number of items, including documents, checks, cash cards, and computer materials. After reviewing the materials seized, on August 24, Probation Officer Frost sought and obtained an arrest warrant for Defendant for alleged probation violations. Federal marshals executed the warrant on September 2, 1988, at which time Probation Officer Frost conducted another search under the special condition of probation and seized more material. The Government now seeks to revoke Defendant's probation.

Defendant has moved to suppress the items seized during the two searches of his house to prevent their use at the probation revocation hearing. He argues that the searches and seizures violate the Fourth Amendment of the United States Constitution, the Federal Sentencing Guidelines,³ and 18 U.S.C. § 3603, which specifies the duties of probation officers.

The Searches

Defendant's first argument is that the searches by Probation Officer Frost violated the Fourth Amendment. In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the Supreme Court explained Fourth Amendment requirements as they pertain to probationers subject to search under a Wisconsin probation regulation. The Court stated that a probationer's home is protected by the requirement that any searches be reasonable. Id. 483 U.S. at 873, 107 S.Ct. at 3167, at 717. Extrapolating from and quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972), which had addressed the issue of parolees' rights, the Court pointed out that "probationers do not enjoy `the absolute liberty to which every citizen is entitled, but only conditional liberty dependent on observance of special probation restrictions.'" Griffin, 483 U.S. at 874, 107 S.Ct. at 3168, 97 L.Ed.2d at 718. Probation restrictions serve to insure that the probation period is one of genuine rehabilitation and that the community is not harmed by the probationer being at large. Supervision by probation officers is essential to see that the restrictions are observed. Probation supervision is, therefore, a special need of the state⁴ necessitating a degree of infringement of privacy rights which would not be constitutional if it were directed at the public at large. Id. The Supreme Court made clear, however, that the degree to which probationers' rights may be diminished is not unlimited. Id.

In Griffin, defendants had challenged a search conducted under Wisconsin's probation regulations, which permit a search of a probationer's house without a warrant as long as there are reasonable grounds to believe there are items therein which the probationer may not properly possess. The Supreme Court held that the special needs of Wisconsin's probation system, including the need for expedition in searches, the need to maintain a deterrent effect for the supervisory arrangement, and the need for close, nonadversarial monitoring of probationer behavior, justified the regulation. Therefore, a search conducted under the regulation and meeting its requirements is reasonable and...