SELYA, Circuit Judge.
Barbara Curzi-Laaman (Curzi), defendant-appellee, asked the United States District Court for the District of Massachusetts to suppress certain evidence. The district court obliged.
There is surprisingly little dispute concerning the salient facts. We summarize them at this juncture, referring the reader with broader interests to our earlier opinion regarding the same indictment. See United States v. Levasseur, 846 F.2d 786 (1st Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 232, 102 L.Ed.2d 222 (1988).
The evidence which the district court suppressed was seized from Curzi's home in November 1984. At that time, she was thought to be a member of a terrorist cabal which had claimed responsibility for a series of bombings — but no charges were pending against her. Federal warrants were outstanding for several other alleged gang members: Jaan Laaman (appellee's spouse), Richard Williams, Raymond Levasseur, Thomas Manning, and Carol Manning. These persons were wanted, variously, on charges of interstate flight to avoid prosecution for murder and-or attempted murder, bank robbery, and the like. A flyer issued by the Federal Bureau of Investigation (FBI) warned that the group was "known to use automatic weapons" and that its members were "considered ... extremely dangerous."
In the course of an ongoing manhunt for the terrorists, the FBI spotted Patricia Gros, another suspected gang member. Agents tracked her to a dwelling in Deerfield,
Early on the morning of November 4, the FBI received a telephone-trace report which showed that Williams, while en route to Cleveland, had called 4248 W. 22d St. At this point — approximately 8:00 a.m. — official attention focused on the single family home at that address. The surrounding houses were evacuated and more than 35 officers, all armed and many clad in bullet-proof vests, took their places. Roughly half an hour later, at about 8:30 a.m., Williams's hideaway was precisely confirmed: agents saw him leave the house, retrieve something from his parked car, and reenter the premises. The dragnet remained in place. No endeavor was made to procure a search warrant, but there was an attempt to ascertain the homeowner's identity. The agents were able to learn that the telephone number which Williams had called was listed to one Lisa Owens. The name meant nothing to the FBI; the agents could not connect it with the gang or with any criminal activity. They remained completely in the dark as to whether anyone other than Williams was on the premises.
By 10:15 a.m., there had been no material change in circumstances. The FBI chose that moment, however, to escalate the drama into its next stage. An agent telephoned Owens's number and ordered the "occupants" — whoever they might prove to be — to exit. After a short delay, during which several more orders were issued, three children debouched; Williams, Curzi, and Laaman soon followed. The adults were immediately arrested (the two men on outstanding warrants; appellee on a charge of harboring). Without pausing, the agents entered the dwelling and carried out a security check. They found guns and explosives in plain sight. Later, the FBI obtained a warrant authorizing a full-scale search of the premises. The underlying affidavit relied heavily upon Laaman's arrest outside the house and the items discovered in the course of the protective sweep.
In May 1986, appellee and her alleged fellow gang members were indicted on various charges of racketeering and conspiracy. See United States v. Levasseur, 846 F.2d at 791. The defendants, Curzi included, filed pretrial motions to suppress the evidence seized from 4248 W. 22d St. The district court ruled that Curzi had standing to object to the search and seizure, D.Ct.Op. at 999; that "the order to evacuate the house ... constitu[ted] a search," id. at 999; that the order was not buttressed by exigent circumstances, ergo, illegal, id. at 999-1000; and that, absent the tainted fruits of the invalid exit order, the warrantless protective sweep was also unlawful. Id. at 1000-02 & nn. 5-6. The court held the later, warrant-backed search to be illegitimate as well: "The problem with this latter search is that the government's affidavit, shorn of the unlawfully obtained information, fails to establish a sufficient nexus between the items to be seized and the place to be searched." Id. at 1001. Accordingly, the district court allowed the motion to suppress evidence seized at 4248 W. 22d St. as to appellee. Id. at 1008.
It is against this backdrop that we canvass the record and the applicable law in order appropriately to address the questions posed. Notwithstanding that we differ from the district court in our approach to the problem, we affirm the order excluding the evidence. On this appeal, all roads lead to Rome.
II. THE OFFICERS' CONDUCT
We review what we believe to be the controlling Supreme Court precedent, and then proceed to evaluate the officers' conduct in that light.
Any reasoned analysis of the issues presented on appeal must begin with the Supreme Court's opinion in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). There, federal agents, following a tip from a confidential informant, used a telephone number to locate an address where a fugitive (Lyons) was reported to be staying. Two days later, with an arrest warrant for Lyons in hand (but no search warrant), the agents went to the locus. They encountered Steagald and another man in front of the building, frisked them, and determined that neither man was Lyons. The agents thereupon entered the building (Steagald's home) and searched it without consent. The fugitive was not found, but drugs were spotted. Steagald was charged in connection with possession of the contraband. Id. at 206-07, 101 S.Ct. at 1644-45. The Court held that the search violated defendant's fourth amendment rights. Id. at 216, 101 S.Ct. at 1650. The evidence was, therefore, suppressed.
In Steagald, the Court ruled that obtaining an arrest warrant for A was not sufficient to authorize B's home to be entered and searched in the course of effecting A's apprehension. In other words, the arrest warrant was inadequate protection for the privacy rights of a resident not named therein. 451 U.S. at 213, 101 S.Ct. at 1648. The Court deemed the intervention of a neutral judicial officer absolutely necessary to guard against "a significant potential for abuse." Id. at 215, 101 S.Ct. at 1649. Absent such a requirement, "[a]rmed solely with an arrest warrant for a single person, the police could search all the homes of that individual's friends and acquaintances." Id. Thus, apart from consent or exigent circumstances, Steagald requires a search warrant before one's home can be searched for a third person who is the subject of an arrest warrant. Id. at 213-14, 101 S.Ct. at 1648.
Steagald, we believe, controls. To be sure, the cases are not on all fours. Here, unlike in Steagald, the agents gave an order to exit before entering the home; and, in contrast to a full-blown search, they performed only a protective sweep.
Before us, the government employs a divide-and-conquer strategy. It splits the
This approach, we think, ignores the stark reality of events. While a spontaneous order to exit, unaccompanied by a predetermined plan to enter the premises as soon as they are evacuated, might well, as the prosecution argues, raise a different set of concerns, that is not this case. On the facts at hand, we cannot view the order to exit and the protective sweep as independent phenomena. As opposed to being scissile, they were inseparable parts of an integrated whole. They should be treated as such. Thus, unlike the court below, we express no opinion upon the lawfulness vel non of either procedure, standing alone.
The linkage is made manifest by the officers' overall plan. The central element — the fact of calculated predesign — cannot seriously be questioned. In the first place, the agents could safely have arrested Williams while he was driving, unaccompanied, from Deerfield to Cleveland. They elected, instead, to follow him. The uncontradicted evidence revealed the rationale for this tactical choice: the FBI wanted "to surveil [Williams] to where he ultimately would go to attempt to apprehend [sic] the arrest of the gang...." Record Appendix (R.A.) 129.
In the second place, the officers had a golden opportunity to arrest Williams when he appeared, alone and apparently unarmed, outside 4248 W. 22d St. at roughly 8:30 a.m. They eschewed that opportunity in favor of a plan which would net them the other occupants of the house — if there proved to be any — and access to the premises for the anticipated sweep.
Id. at 161 (emphasis supplied). In view of these indisputable facts, the government's attempt to isolate the order to exit and argue that it gave rise to exigent circumstances justifying the subsequent protective sweep amounts to little more than sophisticated bootstrapping. It cannot succeed.
This is not a case where officers in hot pursuit cornered dangerous criminals and were compelled to act on the spur of the moment. Rather, though the quest was hazardous, at the end the agents enjoyed the luxury of time and the opportunity for careful reflection. Instead of acting in the heat of the chase, they were able to indulge in cool premeditation as to the tactics to be employed in Williams's arrest. The uncontested evidence is that the law enforcement personnel planned, well ahead of time, to order not just Williams but all the occupants of the dwelling to exit, and then to conduct the protective sweep, come what might.
We cannot remain faithful to these noble precepts if we permit the government to do by wordplay what it is clearly prohibited from doing in actuality — intruding into an individual's home to search it on the sole basis of an arrest warrant naming a third person who is not reasonably thought to be in residence. To allow the authorities to avoid Steagald compliance by the simple expedient of subdividing an essentially impartible course of conduct into factitious segments would make a mockery of the important constitutional protections carefully crafted by the Framers and clearly articulated by the Court. In this case, the sum of the parts equals the whole. Because the federal agents knew in advance that they would be entering the home to conduct a search, regardless of who or what the order to exit yielded, Steagald required that, absent consent or exigent circumstances, a search warrant be procured.
III. EXIGENT CIRCUMSTANCES
The Supreme Court has not recognized any general "protective sweep" exception to the warrant requirement. See generally Comment, Clean Sweeps: Protecting Officer Safety and Preventing the Imminent Destruction of Evidence, 55 U.Chi.L.Rev. 684 (1988). Nor has this court sought to create one. Our view has been — and remains — exactly opposite: "a `protective sweep' is `no more lightly taken than any other instance where the government seeks to justify an unwarranted search.'" United States v. Gerry, 845 F.2d 34, 36 (1st Cir.1988) (quoting United States v. Hatcher, 680 F.2d 438, 443 (6th Cir.1982)). Without benefit of search warrants, security sweeps are constitutionally impermissible unless (a) supported by probable cause, and (b) justified by consent, exigency, or some other acceptable reason for bypassing the usual constraints of the fourth amendment. See United States v. Gerry, 845 F.2d at 36; United States v. Veillette, 778 F.2d 899, 902-03 (1st Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). In this case, there was no consent to the search. The prosecution claims, however, that the agents had probable cause and were faced with an exigency sufficient to permit the interdicted activity (the combined order to exit and ancillary protective sweep). We examine this contention insofar as it relates to the presence or absence of exigent circumstances.
Our precedent teaches that we must ascertain "whether there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant." United States v. Adams, 621 F.2d 41, 44 (1st Cir.1980); accord United States v. Gerry, 845 F.2d at 36; United States v. Cresta, 825 F.2d 538, 553 (1st Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988). To effectuate this inquiry, we consider factors such as the following: "the gravity of the underlying
The government's litany of exigent circumstances includes the following: the seriousness of the underlying offense for which Williams was sought; the grave risk to public safety stemming from the wanted man's demonstrated proclivity toward violence; the dangers inherent in attempted capture of such an individual; the fear that Williams could escape if not swiftly apprehended; the sinister reputation and record of Williams's fellow fugitives; and the gang's anarchic bent.
The cases cited by the government are uniformly inapposite. We deign to discuss but two of them. In United States v. Cresta, supra, we held that there were exigent circumstances to justify the warrantless entry into defendants' hotel room, and their arrest, notwithstanding that probable cause existed prior to the time that exigent circumstances arose. 825 F.2d at 553. There, however, an emergency arose — wholly apart from volitional acts of the FBI team which had placed defendants under observation. Id. In the case at bar, unlike in Cresta, no new exigency blossomed between deployment of the officers and announcement of the order to exit. The reverse is true. The district court found, supportably, that the "decision to move was not prompted by any activity in the house or any exigent circumstances known to the police officers beyond the exigency of enforcing the law and apprehending
The prosecution's reliance on United States v. Edwards, 602 F.2d 458 (1st Cir.1979) is similarly misplaced. In Edwards, we detected exigent circumstances adequate to justify warrantless entry where "government agents could not have obtained a search warrant for [defendants'] home" earlier, id. at 468, and "legitimately could fear that [defendants] had discovered their surveillance and would destroy the [evidence] before a search [warrant] could be obtained." Id. at 469. In contrast, the FBI in this case set the timetable. It was Schwein who designed the tactics and elected to reveal the agents' presence at a particular moment. There was no evidence to indicate that Williams or any other occupant of the dwelling had discovered the surveillance.
We bring this part of our opinion to a close. It was Curzi's home into which the authorities intruded. The agents did not know that she lived in the house or was there when Williams arrived. They were similarly unaware of Laaman's residency and presence. Appellee was clearly entitled to the protection the warrant requirement of the fourth amendment provides: an impartial ascertainment of probable cause by a judicial officer, focusing on either the house or some person living therein. She was deprived of that right, and the government has failed to excuse the deprivation. The district court's conclusion that there was no saving exigency is supported by the evidence.
The government offers a potpourri of other arguments why, even absent exigent circumstances, the avails of its egress order and protective search should not be suppressed. We find none of these exhortations convincing.
Appellant contends that the official overreaching which occurred was immaterial; the evidence would have been discovered sooner or later. Thus, the prosecutorial thesis runs, the evidence is salvageable under the rule of Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377 (1984) (when evidence "would inevitably have been discovered without reference to the police ... misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible"). Yet — whether or not discovery of the evidence was sure to occur — one thing appears fairly certain: this particular fulguration comes too late. The government failed to make the argument below.
The government's next asseveration is that the FBI acted in good faith in failing seasonably to secure a search warrant. On that basis, appellant tells us that the good-faith exception to the exclusionary rule, articulated by the Court in United States v. Leon, 468 U.S. 897, 905-25, 104 S.Ct. 3405, 3411-22, 82 L.Ed.2d 677 (1984), commands our deference and counsels that the challenged evidence not be inhumed. This assertion is severely flawed.
First, Leon requires not merely good faith, but objective good faith. See id. at 924, 104 S.Ct. at 3421 ("the good-faith exception ... turn[s] ... on objective reasonableness"); id. at 922-23 & n. 23, 104 S.Ct. at 3420-21 & n. 23 (similar); see also United States v. Diaz, 841 F.2d 1, 5 (1st Cir.1988) (reviewing tribunal "must determine whether the agents were acting in objective good faith" before applying exclusionary rule). Though we do not question the subjective good faith of the agents involved in this perilous manhunt, that is not enough. The record will not sustain a finding that, under the circumstances of this foray, an objectively reasonable law enforcement officer would have believed a warrant was unnecessary. Because the agents knew in advance that they would be searching a home, not Williams's, and had more than ample time to visit or call a magistrate to obtain a search warrant, they should have done so.
Second, this court has not recognized a good-faith exception in respect to warrantless searches. In what seems a contrary vein, we have held that "the good faith exception ... will not be applied unless the officers executing search warrants, at the very minimum, act within the scope of the warrants and abide by their terms." United States v. Fuccillo, 808 F.2d 173, 177 (1st Cir.), cert. denied, 482 U.S. 905, 107 S.Ct. 2481, 96 L.Ed.2d 374 (1987); cf. Maryland v. Garrison, 480 U.S. 79, 88, 107 S.Ct. 1013, 1019, 94 L.Ed.2d 72 (1987) (validity of search of premises imprecisely described in warrant "depends on whether the officers' failure to realize the overbreadth of the [search] warrant [which they had obtained] was objectively understandable and reasonable").
It makes eminently good sense, we suggest, to employ the rule precisely as it has been formulated by the Court: as "a good-faith exception to searches conducted pursuant to warrants." Leon, 468 U.S. at 924, 104 S.Ct. at 3421. This is particularly so when one considers the Court's concern that "[p]enalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Id. at 921, 104 S.Ct. at 3419. To be sure, the Court has lately enlarged the casement of the good-faith window to encompass "evidence obtained by an officer acting in objectively reasonable reliance on a statute," Illinois v. Krull, 480 U.S. 340, 349, 107 S.Ct. 1160, 1167, 94 L.Ed.2d 364 (1987), but that is because it serves no purpose to penalize the officer for the legislature's error. Id. at 349-50, 107 S.Ct. at 1167.
In this instance, law enforcement personnel refrained from seeking a search warrant; they do not claim to have conducted a statutorily authorized administrative search. The error was attributable solely to the agents — not to some errant judicial officer or imprecise parliament. The differences between the present scenario and cases like Leon and Krull are like night and day. Based on the caselaw as it stands, the good-faith exception is not available to appellant.
The government's final thrust is that the illegally-obtained information was, in any event, mere surplusage. Put another way, appellant contends that the affidavit upon which the belatedly-obtained search warrant was predicated, stripped of the impermissible references to tainted evidence, established probable cause within its four corners. For this reason, the prosecution asserts that the suppression order should not have extended to the fruits of the full-scale search of the premises. The thrust, we believe, is easily parried.
The applicable standard is not much in doubt:
United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.1988).
In this case, the district court determined that the remains of the proffered affidavit, after excision of the tainted data, did not withstand constitutional scrutiny:
D.Ct.Op. at 1001. We review this finding for clear error. United States v. Aguirre, 839 F.2d at 857; United States v. Figueroa, 818 F.2d at 1024. We see none here.
The search warrant for the house at 4248 W. 22d St. was issued on the affidavit of Leonard C. Cross, an FBI agent. Cross's affidavit (R.A. 19-48), subscribed on November 5, 1984, was a massive affair, comprising 30 pages of text and 58 separate numbered paragraphs (many quite detailed). The proposed search of Curzi's home was but a small part of the impetus behind the sworn statement; Cross's affidavit was a master document on the basis of which applications for leave to search a variety of "houses, garages and automobiles," R.A. 48, were tendered. We have examined the affidavit with meticulous care and find that, once the tainted material was blocked out, precious little remained anent the Curzi homestead. So configured, Cross's affidavit tells a magistrate no more about 4248 W. 22d St. than that Williams drove there from Deerfield, that he was apprehended there the next morning and, inferentially, that he spent the night. There is nothing in the leavings to indicate
In the last analysis, the prosecution's argument on the point reduces to Williams's mere presence. That is manifestly inadequate to carry the day. A suspect's presence at a dwelling not reasonably thought to be his abode or the abode of a criminal confederate, without more, is too tenuous a connection to establish a meaningful relationship between the suspect and the contents of the house. See, e.g., United States v. Hatcher, 473 F.2d 321, 323 (6th Cir.1973); United States v. Bailey, 458 F.2d 408, 411-12 (9th Cir.1972); cf. United States v. Picariello, 568 F.2d 222, 227 (1st Cir.1978) ("not unreasonable to expect that [suspect's] apartment might contain" evidence of his criminality). The remnants of the affidavit, together with whatever nonspeculative inferences might plausibly be drawn therefrom, are too meagre to warrant reasonably prudent persons believing that the articles sought — explosives, weapons, etc. — were likely located at the situs. No matter how artfully the prosecution endeavors to cut and paste, there is not enough left to fit the bill. The district court did not err in ruling that Cross's affidavit, shorn of the improperly-obtained information, was insufficient to document the required nexus between the place to be searched and the articles to be seized. The totality of the known circumstances permitted no other conclusion.
In this case, the government, despite the luxury of time, elected not to seek a search warrant. The course of official conduct which ensued worked a substantial violation of appellee's fourth amendment rights. The situation was not salvaged by the agents' putative good faith; by any exigency inherent in the circumstances; or by the search warrant which was belatedly procured. On this record, there is no principled way to permit the prosecution to use the contested evidence against Curzi.
We need go no further. Notwithstanding the seriousness of the offenses with which Curzi stands charged or the sociopathic exploits attributed to the gang, the Constitution remains the law of the land. As the Court observed in Steagald:
451 U.S. at 222, 101 S.Ct. at 1653. The district court's suppression order must stand.
United States v. Escobar, 805 F.2d 68, 71 (2d Cir.1986). See generally United States v. Gerry, 845 F.2d 34, 36 (1st Cir.1988); United States v. Veillette, 778 F.2d 899, 902 & n. 1 (1st Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). That there may be minor variations among the circuits, see Comment, Clean Sweeps: Protecting Officer Safety and Preventing the Imminent Destruction of Evidence, 55 U.Chi.L.Rev. 684, 697 & n. 57 (1988), is immaterial for the purposes at hand.