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United States v. Whitehorn

decided: September 29, 1987.


Appeal from a judgment of conviction in the Southern District of New York (Conner, J.), after a plea of guilty to making false statements and submitting false documents in support of a passport application in violation of 18 U.S.C. §§ 1542 and 1001, reserving the right to appeal the denial of a motion to suppress evidence. Although evidence was originally discovered during an illegal search, evidence was admissible because it would inevitably have been discovered during later search conducted pursuant to a properly issued warrant application which was begin prepared while the illegal bomb sweep was being conducted. Affirmed.

Lumbard, Cardamone, and Pierce, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge:

On December 8, 1986, Laura Whitehorn pled guilty in the Southern District of New York to a two-count indictment which charged her with making false statements in an application for a passport in the mane of "Sharon L. Scott" and with submitting a Vermont driver's license in the same name in support of this application in violation of 18 U.S.C. §§ 1542 and 1001. Agents of the Federal Bureau of Investigation seized the false passport and driver's license during a two-day warranted search of her Baltimore, Maryland apartment following her May 11, 1985 arrest. However, Whitehorn claims that the government concedes that this evidence was discovered prior to the issuance of the warrant while agents were conducting a lengthy "bomb sweep" of the apartment. Consequently, before entering her plea, Whitehorn moved on various fourth amendment grounds to suppress the passport, driver's license and certain other evidence obtained as a result of the search.

On January 21, 1987, in a thorough and persuasive opinion, Judge Conner denied Whitehorn's motion. 652 F. Supp. 395. Whitehorn entered her plea conditionally, having reserved her right to appeal the denial of her suppression motion. She was subsequently sentenced to a two-year term of imprisonment. Whitehorn now contends that Judge Conner erred in applying the "inevitable discovery" exception to the exclusionary rule, see Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984), and in holding that the magistrate who had signed the search warrant remained neutral and detached despite his presence in F.B.I. head-quarters during the preparation of a supporting affidavit. We affirm.


Whitehorn's arrest stemmed from efforts by the F.B.I. to apprehend several fugitive members of a violent underground group suspected of murdering an armored car guard in Nanuet, New York and two police officers in Nyack, New York in 1981. The incident, which is described in United States v. Buck, 813 F.2d 588 (2d Cir. 1987), occurred on October 20, 1981 when a group of men emerged from a van in a shopping mall parking lot firing an M-16 machine gun at guards unloading a Brinks armored car. On guard was killed, the other seriously injured. The gunmen escaped with $1.6 million dollars. Later, when stopped by New York state police, the gunmen burst from the back of a U-Haul truck firing automatic weapons, killing two officers and wounding the third. See Buck, 813 F.2d at 589. During 1984 and in the months leading up to the May 1985 search of Whitehorn's apartment, the F.B.I.'s investigation of the incident focused on the whereabouts of four members of the terrorist group - Marilyn Jean Buck, Susan Lisa Rosenberg, Linda Sue Evans, and Dr. Alan Berkman.*fn1

On November 29, 1984, Rosenberg and a confederate were arrested in Cherry Hill, New Jersey while towing a U-Haul trailer, rented under a fictitious name. The trailer contained 740 pounds of dynamite, blasting caps, 14 weapons, ammunition, numerous pieces of false identification and several masters used for printing such documents. Some of these masters bore Evans' fingerprints and several of the weapons were traced to her under a fictitious name. The automobile pulling the van was traced to Buck, who had registered the car also using an alias. Berkman's latent fingerprints were found on an ammunition manual in the U-Haul. On the day of Rosenberg's arrest, Evans suddenly quit her job in a New Haven printing shop and moved from that city.

Through subsequent investigation, the F.B.I. concluded that Evans, Buck and other members of the group had moved operations to the Baltimore, Maryland area. Evans, using the name "Chris Johnson," made several phone calls to the Youngblood Music Workshop in Guilford, Connecticut one of which was traced to a pay telephone at 5432 Hartford Road in Baltimore. While monitoring that phone on May 9, 1985, agents observed Evans make two more calls. Several minutes after placing the second call, Evans got into a brown Toyota with New York license plates, driven by a man believed to be Berkman. Evans and the man drove to the vicinity of the Yorkwood Apartments, a large residential complex in Baltimore, which they separately entered.

The next morning, on May 10, F.B.I. agents saw Evans and a women, later identified as Buck, leave the apartment complex and drive away in the brown Toyota which headed for New York. At approximately 10:00 a.m. the next day, Buck and Evans, who had been under surveillance since they left Baltimore, were arrested in New York City. At the time of their asserts, both women were carrying fully-loaded weapons and false identification.

On the day of the arrests, May 11, F.B.I. agents in Baltimore quickly moved to locate the specific apartment in the Yorkwood complex in which they believed Evans and Buck had been staying with Berkman, and to obtain a warrant to search it. Additionally, several F.B.I. agents from the New York office traveled to Baltimore to draft a supporting affidavit detailing the F.B.I.'s investigation of the fugitives and to provide other background information for the warrant.

At approximately 11:00 a.m. that same morning, agent Tom Moore arrived at the Yorkwood Apartments. The rental manager of the complex told him that a woman named "Ann Morrison" had rented apartment D in Building 5714 and had been living there with her sister, "Natalie." Another employee in the rental office identified one of these woman and Buck and accurately described her as walking with a limp.

Moore then went to Building 5714, where he was joined by agents Michael Garrett and Roger Kuhlman. While Garrett positioned himself on the staircase below apartment D, Moore and Kuhlman interviewed the tenants of two nearby apartments. Both identified Buck and Evans from photographs as two of the three women whom they had repeatedly seen entering and leaving apartment D. At some point during these interviews, agent Garrett announced that he had seen feet moving within the apartment through the narrow space underneath its door. After retrieving weapons and donning bulletproof vests, the agents returned to apartment D, knocked on the door, identified themselves as F.B.I. agents and announced that they had a warrant for Dr. Berkman's assert. A woman inside refused them entry. The agents said they then heard the sound of paper being torn within the apartment. Fearing that evidence was being destroyed, agent Moore attempted to open the door with a passkey he had been given at the rental office. When he found that the key would not work, he told the woman inside that if she did not open the door, it would be forced open. When no response was forthcoming, the agents kicked the door open and found Whitehorn inside. They immediately placed her under arrest on the charge of harboring Buck and then conducted a three-to-four minute security check of the apartment during which they discovered no one else and nothing of evidentiary value.

Leaving agent Garrett to guard the apartment, agents Moore and Kuhlman left to take Whitehorn to the F.B.I. office shortly after noon. By that time, agents Foley, Ash, and Williams had arrived at the office and were beginning to draft the search warrant affidavit with agent David Major. On the trip back, agent Moore radioed the group and reported that apartment D had been forcibly entered and that Whitehorn, who was as yet unidentified, had been arrested. During the conversation Moore expressed concern that because of the terrorist group's history of using explosives, there was a possibility that Whitehorn had triggered an explosive device between the time that the agents had first announced their presence and when they forced their entry ...

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