US v. Rullo, Crim. No. 89-286-Wf.

• Decision Date: 31 August 1990
• Docket Number: Crim. No. 89-286-Wf.
• Citation: US v. Rullo, 748 F. Supp. 36 (D. Mass. 1990)
• Parties: UNITED STATES of America v. Michael RULLO.
• Court: U.S. District Court — District of Massachusetts

748 F. Supp. 36

UNITED STATES of America v. Michael RULLO.

Crim. No. 89-286-Wf.

United States District Court, D. Massachusetts.

August 31, 1990.

Joseph M. Walker, III, Asst. U.S. Atty., Boston, Mass., for plaintiff.

Frank L. Bruno, Winthrop, Mass., for defendant.

MEMORANDUM AND ORDER

WOLF, District Judge.

Defendant Michael Rullo was arrested in East Boston, Massachusetts on November 8, 1989 and indicted on November 16, 1989 for possession and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), use and carrying of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 111(b). Defendant moved to suppress all statements made by him at the time of his arrest and all evidence found as a result of those statements. In particular, defendant wishes to suppress a handgun he disposed of shortly before his arrest and his statements which allegedly led the police to discover the handgun. Defendant asserts the statements were made involuntarily and in violation of his Fourth and Fifth Amendment rights to due process, freedom from self-incrimination and freedom from unreasonable searches and seizures.

The court held four days of evidentiary hearings on the motion to suppress (the "Suppression Hearing"). The court heard testimony from Keith Gurry, who is a resident of East Boston and eyewitness to many of the events which occurred on November 8, 1989, the defendant, and the following members of the Boston Drug Task Force (the "Task Force"): Drug Enforcement Agency ("DEA") Special Agent Donald Hansen; Massachusetts State Trooper Francis Glasheen; Secret Service Special Agent John Rodrigues; Patrolman Hemenegiodo Martinez; Patrolman Dennis Riordan; Detective Lieutenant Peter Murphy; Detective Joseph Wells; and Massachusetts State Trooper Michael Craven.

For the reasons stated below, the court finds that defendant's statements must be suppressed as improperly obtained in violation of his Fourth and Fifth Amendment rights and that the handgun which was found as a result of those statements must also be suppressed. More specifically, with regard to the handgun, the court finds that the independent source exception to the exclusionary rule does not apply in the instant case and that application of the inevitable discovery exception to the exclusionary rule would be inappropriate because its use here would significantly weaken Fourth and Fifth Amendment protections and abet other police misconduct.

I. FINDINGS OF FACT

Upon consideration of the evidence presented, including an assessment of the credibility of the witnesses, the court finds the following facts have been established by a preponderance of the evidence.

On the evening of November 8, 1989, defendant Michael Rullo drove his friend and co-defendant Pasquale Turavani to the parking lot of a Burger King located between Bennington and Saratoga Streets in East Boston, Massachusetts. Turavani got out of Rullo's car and approached a red Corvette occupied by Troopers Glasheen and Craven, who were operating undercover as part of a newly established Boston Drug Task Force composed of federal, state and local law enforcement officials. Rullo stayed in his car. Turavani attempted to make a sale of cocaine to the troopers. The buy had been set up earlier with the help of a confidential informant, who had notified the officers that either Turavani or his companion would be armed. Several other members of the Task Force were in the area surveilling the buy. When these agents moved in to arrest Turavani, he fled across the nearby MBTA tracks. Craven, Agent Rodrigues, Patrolman Martinez, Patrolman Riordan, Lieutenant Murphy, and Detective Wells, among others, chased Turavani, who was apprehended fifteen to twenty minutes later.

Up to this time, none of the Task Force members had observed Rullo with Turavani or had otherwise noted his presence in the area. However, as Turavani fled, Agents Hansen and Hersey, who were stationed in the rear of the Burger King parking lot, saw Rullo walking rapidly across the parking lot in the direction of Saratoga Street. The agents, who were dressed in civilian clothes, requested that Rullo stop. Rullo refused to comply and ran in the direction of Saratoga Street. As he ran, Rullo appeared to keep his right hand either in the waistband of his sweatpants or in his right jacket pocket. Hansen and Hersey chased him with guns drawn, repeatedly yelling at Rullo to stop. The agents were approximately 50 feet behind Rullo at this time. Glasheen followed another 40 to 50 feet further back.

After continuing the chase for a minute or so, Hansen believed he saw defendant jump the fence around a house at the corner of Westbrook and Saratoga Streets and go behind a bush in the house's yard. The court finds that Rullo actually turned the corner. Hansen and Hersey took cover behind a car ten feet from the corner. Hansen heard what he thought were two nearly-simultaneous gunshots, but did not see defendant fire a weapon. Rullo states that he did not fire at the agents, but simply threw the gun away. Rullo states, and the court believes, that the gun discharged once as it hit the ground and that the second shot Hansen believed he heard was merely an echo of the accidental firing.

At this point, Glasheen caught up with Hansen and Hersey. The officers called for backup and initiated a search for Rullo. Over the course of the next 15 minutes, between 50 and 75 law enforcement officers, in uniform or plain clothes, flooded the area. The agents who had been chasing Turavani heard about the alleged shooting and all made their way to Saratoga Street. Several dozen civilians were on the street watching. Some members of the media were also present.

After throwing the gun away, Rullo had run into the backyard of a house and hidden for ten to fifteen minutes. As he started to return to the Burger King via Saratoga Street, Rullo saw the police officers searching for him. He subsequently hid on the raised front porch of a house five buildings down Saratoga Street from the corner of Saratoga and Westbrook. The porch had a low wall behind which defendant was crouching. Rullo was finally located when one of the residents of the house opened the front door and motioned with his head and hand toward the defendant.

Upon locating Rullo, several law officers took cover behind cars on the street in front of the house. Hansen and Rodrigues positioned themselves on the porch of an adjoining house. The officers shouted to Rullo to stand up with his hands raised. At first he did not comply. When they repeated the instruction, he stood up with his hands above his head and his back to the street. His hands were visible and empty. The officers could not, however, tell if he was still carrying a gun in his waistband or pocket.

At least six and perhaps as many as ten officers rushed on to the porch in a disorganized fashion. The first agent to reach Rullo was Hansen, who believed the defendant had previously fired a weapon at him. Hansen immediately grabbed the defendant and threw him face first on to the floor. Also on the porch initially were Glasheen and Martinez. Rodrigues went up shortly after them, as did Craven and Wells. Murphy did not get on the porch until Rullo was already being lifted to his feet.

Rullo was promptly pushed face down on the floor of the porch, with his left arm pinned behind his back and his right arm underneath him. While he was in this position, several officers started to punch and kick him. Some of the officers admitted to punching him in the right shoulder and side, but stated that their intent was to gain control of his right arm and hand, which they feared held a gun. Rullo remembered being kicked and Gurry and Rodrigues recalled seeing various officers making kicking motions. The court believes this testimony, and finds that the officers on the porch both punched and kicked defendant with the mixed motives of gaining control over his right arm and punishing him for the the shooting they believed occurred. The court also finds that, as Rodrigues testified, the scene on the porch was initially out of control. Rodrigues, as the senior federal agent on the porch, sought to establish control of the situation.

As they punched and kicked Rullo the officers cursed at him, calling him, among other things, a "scumbag" and an "asshole." Defendant and Gurry testified the officers also yelled, "Do you like shooting cops, punk?" All of the agents who testified denied saying this or hearing anyone else say it. The witnesses all agreed, however, that the officers repeatedly questioned Rullo about the location of the gun. Rodrigues told Rullo, "Give us the gun and we'll let you up."

Rullo feared that the beating would open the stitches from his recent hernia operation. He shouted, "Let me up," but the testifying agents did not hear or understand him if he expressed concern about his recent surgery. After several minutes of being beaten, Rullo told the officers that he had dropped the gun at the corner of Saratoga and Westbrook Streets.

The officers handcuffed defendant and pulled him to his feet, at some point patting him down and pulling his sweatpants down around his legs. Rullo's face was bloody from a cut on his forehead received during the beating. At Rullo's request, Wells pulled his pants back up before leading him down from the porch. At this point, Wells told Rullo, "I'm the only friend you've got." He then asked defendant the location of the gun. Rullo again said he had dropped it at the corner.

Wells and Martinez took Rullo off the porch and placed him in the back seat of Martinez' unmarked car. Wells and Martinez then walked away. Murphy got in the back seat with defendant and started wiping blood from his face with a tissue. Riordan got in the front passenger seat and, according to ...