United States v. Guarino , 578 F. App'x 1 ( 2014 )

13-3731
United States v. Guarino
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of September, two thousand fourteen.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellant,
v. No. 13-3731-cr
CESARE GUARINO,
Defendant-Appellee.
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APPEARING FOR APPELLANT: PAUL D. SILVER (Kevin P. Dooley, on the
brief), Assistant United States Attorneys, for
Richard S. Hartunian, United States Attorney for
the Northern District of New York, Albany,
New York.
APPEARING FOR APPELLEE: JAMES P. EGAN (James F. Greenwald,
Assistant Federal Public Defender, on the brief),
Research & Writing Attorney, for Lisa Peebles,
Federal Public Defender for the Northern
District of New York, Syracuse, New York.
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Appeal from an order of the United States District Court for the Northern District of
New York (Thomas J. McAvoy, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order entered on September 23, 2013, is AFFIRMED and the
case is REMANDED for further proceedings.
The United States appeals from an order suppressing evidence seized in violation of
the Fourth Amendment, arguing that the district court erred in failing to recognize that the
firearm and silencers seized were admissible under the theory of inevitable discovery. In
reviewing the district court’s findings of historical fact for clear error and its application of
the inevitable discovery doctrine de novo, see United States v. Stokes, 733 F.3d 438, 443
n.6 (2d Cir. 2013), we assume the parties’ familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain our decision to affirm and
remand.
Although evidence seized in violation of the Fourth Amendment is ordinarily
inadmissible at trial, an exception applies “if the government can prove that the evidence
would have been obtained inevitably without the constitutional violation.” United States
v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) (internal quotation marks omitted). To
demonstrate inevitable discovery, the government must prove by a preponderance of the
evidence that, “viewing affairs as they existed at the instant before the unlawful search
occurred, . . . a court can find, with a high level of confidence, that each of the
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contingencies necessary to the legal discovery of the contested evidence would be resolved
in the government’s favor.” United States v. Stokes, 733 F.3d at 444 (internal quotation
marks omitted); see id. (“Under the inevitable discovery exception, unlawfully seized
evidence is admissible if there is no doubt that the police would have lawfully discovered
the evidence later.” (emphasis in original) (internal quotation marks omitted)).
Here, the government does not contest that the firearm and silencers were seized
unlawfully. Nevertheless, it proffers various theories to support inevitable lawful
discovery: (1) defendant would have voluntarily surrendered the firearm as a condition of a
court order of protection; or (2) if defendant did not comply with the surrender order,
police would have seized the firearm pursuant to a search warrant based on (a) such
non-compliance or (b) probable cause that evidence of defendant’s criminal conduct would
be found in his locked room. We are not persuaded.
First, in the context of an inevitable discovery inquiry, assumptions about the
conduct of non-law enforcement—here, the defendant—are “inherently speculative,” thus
generally precluding the high degree of confidence required to afford an exception to
suppression. Id. at 447 (reversing inevitable discovery conclusion that relied upon
assessment of “actions that might have been taken by third parties—[defendant],
[defendant’s associate], or motel staff—not acting at the behest of the police”). Indeed,
the requisite confidence in defendant’s hypothesized compliance with the surrender
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provision of a protective order is further undermined here by his history of volatile action
and potential mental illness.
In nevertheless maintaining that Guarino’s compliance with the firearm surrender
provision of a protective order was inevitable, the government points to his earlier
“voluntary” disclosure of the combination to his gun safe. The district court was not
persuaded nor are we. When defendant disclosed the safe combination, he was in custody
and had not been advised of his rights. Moreover, he disclosed the combination knowing
that police had already entered his bedroom (the Fourth Amendment violation) and in
response to an officer’s questionable assertion of authority to “seize” any firearms in the
safe pursuant to the order of protection. G.A. 128. While the district court did not find
these circumstances to evidence coercion, the issue before us is not whether they manifest a
constitutional violation but whether they leave us with “no doubt” that, even without the
unlawful entry into defendant’s room and with a correct statement as to his obligations
under the protective order and the consequences of non-compliance, defendant would have
surrendered his guns. The circumstances of the combination disclosure do not support the
requisite high degree of confidence. Cf. United States v. Moreno, 701 F.3d 64, 77 (2d Cir.
2012) (stating that handcuffs, absence of Miranda warnings, and knowledge of right to
refuse are factors in voluntariness analysis); United States v. Vasquez, 638 F.2d 507, 528–
29 (2d Cir. 1980) (implying that false claim of ability to obtain warrant can negate
voluntariness of consent).
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Second, we also do not have the requisite “high level of confidence” that, if
defendant had not complied with the surrender order, police inevitably would have seized
firearms pursuant to a search warrant based on such non-compliance. Violation of a
surrender order appears to expose a defendant to criminal charges. See People v. Havrish,
8 N.Y.3d 389, 392, 834 N.Y.S.2d 681 (2007) (stating that had defendant not surrendered
weapons pursuant to order of protection, “he could have been prosecuted for criminal
contempt”). Nevertheless, the government points us to no authority that a search warrant
inevitably issues, cf. United States v. Cabassa, 62 F.3d 470, 473–74 (2d Cir. 1995) (stating
that even where probable cause exists, if “there is some room for disagreement . . . [t]here
is thus a residual possibility” that warrant would not have issued), much less issues so
promptly as to preclude removal of sought items by third parties, see People v. Degiorgio,
36 A.D.3d 1007, 1007, 827 N.Y.S.2d 342, 343 (3d Dep’t 2007) (stating that search warrant
for guns was obtained after defendant not in custody repeatedly refused to comply with
surrender provision); see also United States v. Stokes, 733 F.3d at 447 (rejecting inevitable
discovery, in part, because contraband possibly would have been moved by third party
prior to lawful seizure).1 Accordingly, we do not conclude that the evidence inevitably
would have been seized lawfully on this basis.
1
In this respect we note that although defendant’s mother originally requested that police
remove her son’s firearms from her house, she subsequently testified in his defense at the
suppression hearing, making it difficult to have a high degree of confidence that she would
not have removed the firearms before a non-compliance warrant was executed.
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Third, even assuming that the police had probable cause to search Guarino’s
bedroom for evidence of his criminal mischief and stalking offenses, we cannot determine
with a high level of confidence that police would have sought a warrant on such grounds.
Cf. United States v. Heath, 455 F.3d at 55 (remanding for further factual findings as to
whether officer would have arrested suspect even though probable cause likely existed).
Police had not begun to apply for such a warrant at the time of the illegal search. See
United States v. Cabassa, 62 F.3d at 473 (instructing that where inevitable discovery claim
is “based on expected issuance of a warrant, the extent to which the warrant process has
been completed” at time of unlawful search “is of great importance”). Rather, the single
court order police intended to secure at that time was an order of protection with a firearm
surrender provision. Compliance with that order, however, would have, at least arguably,
precluded defendant’s prosecution for unlawful firearms possession under New York law.
See N.Y. Penal Law § 265.20(a)(1)(f) (stating that New York unlawful firearms possession
statutes do not apply to persons who “voluntarily surrender[]” firearm to police); N.Y.
Crim. Proc. Law § 530.14(5)(b) (providing that “prompt surrender of one or more firearms
pursuant to a court order issued pursuant to this section [authorizing protective orders’
surrender provisions] shall be considered a voluntary surrender for purposes of [N.Y. Penal
Law § 265.20(a)(1)(f)]”). These circumstances do not afford a high degree of confidence
that police intended or inevitably would have secured a search warrant based on probable
cause that they would find evidence of the charged state mischief and stalking offenses.
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Indeed, the government did not argue such a search and seizure theory before the district
court, either in its initial opposition to defendant’s motion to suppress or in its motion for
clarification.
In sum, because we cannot conclude that there is “no doubt” that the police
inevitably would have secured the illegally seized evidence by lawful means, the
government’s challenge fails on the merits.
We have considered the government’s remaining arguments and conclude that they
are without merit. We therefore AFFIRM the order of the district court and REMAND for
further proceedings.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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