Appeal by the United States pursuant to 18 U.S.C. § 3731 from order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, suppressing evidence seized from defendants' apartment. Affirmed in part and reversed in part.
Before Meskill and Kearse, Circuit Judges, and Coffrin, District Judge.*fn*
The United States appeals from an order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, suppressing evidence seized by law enforcement officials from the apartment of defendants-appellees Andres Segura and Luz Marina Colon, who are charged in four counts of a five-count indictment with conspiracy to commit an offense under the narcotics laws in violation of 21 U.S.C. § 846 (1976), and with possession and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (1976). Some of the evidence seized from the apartment was discovered prior to the issuance of a search warrant and some was discovered in the search that followed issuance of the warrant. We affirm the district court's suppression of the pre-warrant evidence, but reverse the order to the extent that it suppressed evidence discovered after the issuance of the search warrant.
In January 1981, members of the New York Drug Enforcement Task Force ("Task Force"), having received information relating to heavy trafficking in cocaine, had begun a virtually constant surveillance of Segura and Colon. On February 12, at approximately 5:00 p.m., Task Force agents followed Segura and Colon to a Burger King in Queens, where they observed Segura and Colon effect what appeared to be the delivery of a bulky item to Enrique Rivudalla-Vidal and Esther Parra. The agents followed Rivudalla and Parra, and at approximately 5:30 stopped them for questioning. Upon learning that a paper bag carried by Parra contained a glassine bag of white powder, the agents placed Rivudalla and Parra under arrest. The white powder was eventually determined to be approximately one-half kilogram of cocaine. After being advised of his constitutional rights, Rivudalla stated that he had received the cocaine from Segura. He added that they had originally planned a one kilogram sale, but that he had requested the smaller quantity because he was unsure of his ability to sell a full kilogram, and that Segura was to telephone him at approximately 10 p.m. to learn whether he had been successful in selling the half kilogram.
At approximately 6:30 p.m., one of the agents telephoned an Assistant United States Attorney for the Eastern District of New York to request permission to arrest Segura and Colon and authorization to search their apartment. The Assistant authorized the arrests, but stated that a search warrant was unobtainable that evening and instructed the agent merely to secure the apartment without searching it.
At 7:30 p.m. three agents, led by Special Agent Patrick Shea of the United States Drug Enforcement Agency ("DEA"), who was assigned to the Task Force, set up surveillance of the defendants' apartment from the fire stairs near the door of the apartment, 3D. At that time the agents had no reason to believe anyone was inside the apartment. No lights were visible. Shea pressed his ear to the apartment door, but heard no sounds from within. Segura's car was not parked in the vicinity. For nearly three hours no one entered or left the apartment as the agents watched from the fire stairs. At about 10:30 the agents left the fire stairs to set up surveillance outside the building.
At approximately 11:15 p.m. Segura entered the building alone. The agents followed him into the vestibule and, as he unlocked the inner door, arrested him. Agent Shea told Segura they were going to "go up to the apartment." Segura denied living in the building, but the agents forcibly took him to apartment 3D. Shea knocked on the door, which was answered by a woman later identified as Colon. Shea showed his badge and told Colon that Segura had been arrested and that a search warrant was being obtained; then he and the other agents and Segura entered the apartment. The agents neither requested nor received permission to enter.
Once inside, the agents discovered three other persons present with Colon. Two of the agents immediately conducted a security check to ensure that no one else was present who might constitute a threat to their safety or destroy evidence. During this limited inspection they discovered a triple-beam scale and several jars of lactose in plain view on a bedroom table and numerous small cellophane bags in a bedroom closet.
Eventually, Colon was placed under arrest, and she, Segura, and the other three persons found in 3D were taken to DEA headquarters. As Colon was preparing to depart, she sought to take her shoulder bag with her. Before permitting this, one of the agents searched the bag for a weapon and discovered a loaded .38 caliber revolver and more than $2,000 in cash.
Two agents remained in the apartment to secure it until a search warrant was issued. Because of "administrative delays," application for the warrant was not presented to a magistrate until approximately 5 p.m. the following day. The warrant was issued and then executed at about 6 p.m., some nineteen hours after the initial entry. In the search pursuant to the warrant agents discovered 1,250 grams of cocaine in an attache case, 58 grams of cocaine in the pocket of a coat in the bedroom closet, 18 rounds of .38 caliber ammunition, more than $50,000 in cash, and records of narcotics transactions. The agents seized all of these items, together with the items discovered during the security check of the previous night.
This prosecution followed. Segura and Colon moved to suppress the items seized from their apartment on the ground that the entry and search violated their rights under the Fourth Amendment to the Constitution. The government contended that the entry into the defendants' apartment was justified by exigent circumstances because the agents feared Colon would destroy the evidence they believed was there before a search warrant could be obtained. After an evidentiary hearing, the district court ruled that the entry was not justified. Further, the court concluded that although the search warrant eventually obtained was valid, all of the evidence seized should be suppressed because the 19-hour delay made execution of the warrant unreasonable and because had it not been for the unlawful entry, the evidence seized might not have been there 19 hours later.
The government has appealed, as permitted by 18 U.S.C. § 3731 (1976), and renews here its contention that exigent circumstances justified the entry. In the event that we reject this argument, the government urges that we reverse the suppression of evidence other than the gun since that evidence was not "seized" until after issuance of the search warrant, or, alternatively, that we ...