Monday, August 18th, 2008

Valentine’s Day Off

United States v. Valentine, No. 06-5648-cr (2d Cir. August 5, 2008) (Leval, Calabresi, CJJ, Nevas, DJ)

Federal agents intercepted a fifty kilogram drug shipment that was addressed to an apartment building in Brooklyn. They arranged for a controlled delivery, and watched from a surveillance van across the street. Valentine went to the fake FedEx truck and called over a friend. He also agreed to help offload the delivery if he got paid. He then found someone else inside the building, who tried to locate the recipient of the delivery, but ultimately no one signed for it, and the fake FedEx truck left.

Surveillance officers stayed behind, however. They saw Valentine go in and out of the building, speak to people, and go with them to a nearby vacant lot. A few minutes later, he reappeared holding a beverage and went back to the building. He also took of his sweatshirt and put it in his car. At this point, the agents arrested him. They also searched his car, and found glassines containing heroin in the sweatshirt.

The agents then went to Valentine’s apartment, which was in the target building, and his wife gave them permission to search it. There, they found guns and another small quantity of heroin.

Valentine moved to suppress the evidence, claiming that he had been arrested without probable cause. The district court denied the motion. Although it held that Valentine’s actions during the attempted FedEx delivery were too ambiguous to provide probable cause, his later actions – the entry into the vacant lot with others, and his reappearance with a beverage, were enough.

The circuit reversed, holding that the arrest was not supported by probable cause. It agreed with the district court that there was no basis for arresting Valentine based on his conduct prior to the attempted controlled delivery. But it concluded, contrary to the district court, that Valentine’s actions after the delivery were likewise “too ambiguous to raise more than a generalized suspicion of involvement in criminal activity.” The arrest, ultimately, was based on the agents’ assumption that Valentine had consummated a drug deal in the vacant lot. But the officers never observed any actual transaction, or any evidence of narcotics trafficking at all, except for a shipment of drugs addressed to a different person in a different apartment in Valentine’s building. And nothing linked Valentine to the FedEx delivery; his presence at that building, which was also his residence, could not support probable cause.

The court went on to hold that the search of Valentine’s car, which was incident to the arrest, was also unlawful, and it suppressed the evidence recovered therefrom. But, as to the evidence recovered from Valentine’s apartment – which was the basis of his conviction – there was insufficient evidence to determine whether the illegal arrest had tainted that. The court remanded the case further proceedings and an attenuation analysis.

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