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UNITED STATES v. ROMANO

January 3, 1975

UNITED STATES OF AMERICA
v.
FRANCISCO JOSE ROMANO



The opinion of the court was delivered by: DITTER

 Francisco Jose Romano was convicted at a trial without a jury of possessing cocaine with intent to distribute in violation of 21 U.S.C. ยง 841(a). Before me is Romano's motion for a new trial based upon my refusal to suppress his statements and the fruits of a search made of the premises in which he lived.

 On July 9, 1974, a United States Customs officer discovered seventy grams of cocaine secreted inside two Columbian newspapers addressed to a Jorge Pelaez and a Carlos Pelaez at a specific mail box located at the Philadelphia College of Textiles and Science. After replacing most of the cocaine with sugar, agents of the Federal Drug Enforcement Administration attempted a controlled delivery of the newspapers to their addressees. On July 19, 1974, the defendant, a student at the College, removed the newspapers from the mail box which was registered to him. He then went to his residence, a townhouse on the college campus that he shared with four other students.

 After observing Romano enter the building, several agents, led by Group Supervisor Frank Wickes, gained admittance but found that the defendant had already left. Shortly thereafter, Romano returned. Agent Wickes immediately identified himself and stated he was investigating the mailing of Columbian newspapers to the College. He asked Romano for permission to search his room and began to inform him of his Miranda rights. The defendant interrupted Wickes, however, stating that he had already placed the papers in the mail. After Wickes finished advising the defendant of his rights, he asked him if he would show the agents where he had done so. Romano agreed and led the agents to a nearby postal box, but the newspapers were not found when it was opened. Agent Wickes immediately placed the defendant under arrest and repeated the Miranda warnings.

 The agents and the defendant then returned to defendant's townhouse at which time Agent Wickes ordered another agent to search the outside of the building. The two Columbian newspapers were found in the lower portion of a drainpipe attached to the rear wall.

 Subsequently, while the defendant was being processed at the Drug Enforcement Administration office he made another statement to the effect that he was only an intermediary for a friend in Columbia. All he was supposed to do was change the address on the newspapers and mail them to New York City.

 The first issue facing the court is whether defendant's statements to Agent Wickes and other officers should have been suppressed.

 After hearing the evidence, I concluded that a reasonable person in Romano's place would believe he was not free to leave when the agents identified themselves. I therefore held he was under custodial interrogation even before his formal arrest. See Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969); Steigler v. Anderson, 496 F.2d 793, 798-99 (3d Cir. 1974); United States v. Hall, 421 F.2d 540 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S. Ct. 1123, 25 L. Ed. 2d 398 (1970).

 Romano is a twenty-year old Columbian national who was attending college in Philadelphia. He had been in the United States for about one year. I concluded that the defendant understood his constitutional right to remain silent, have an attorney present at any questioning, have an attorney appointed if he could not afford one, and prevent the agents' searching his room. The agents' testimony that they gave Romano the Miranda warnings several times and that he understood them is uncontradicted. *fn1" The fact that the defendant refused permission to search his room while freely talking to the agents about receiving the newspapers leads me to infer that he understood his rights and voluntarily waived some of them. *fn2"

 Defendant contends, however, his initial statement that he had mailed the newspapers, was made before he was given the Miranda warnings. On the other hand, two government agents testified that the defendant interjected this comment while Agent Wickes was telling him his rights. After careful consideration I concluded that the agents' version was the more believable.

 In Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966) the Supreme Court stated, "Voluntary statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Thus, there is no constitutional protection for a defendant's alibi statement that is voluntarily interjected and interrupts a law enforcement official during Miranda warnings even though the alibi proves hollow. See United States v. Vigo, 487 F.2d 295, 298-99 (2d Cir. 1973); United States v. Gaynor, 472 F.2d 899 (2d Cir. 1973). Cf. United States v. Cobbs, 481 F.2d 196 (3d Cir.), cert. denied, 414 U.S. 980, 94 S. Ct. 298, 38 L. Ed. 2d 224 (1973). It follows then that the claim by the defendant that he mailed the newspapers was admissible. Furthermore, the statement by defendant during his processing at the Drug Enforcement Administration headquarters concerning his involvement in a cocaine distribution system was also properly admissible since it was made after he had been warned of his rights. *fn3"

 II. Search and Seizure of the Columbian Newspapers

 Defendant's second allegation of error was in my not suppressing the seizure of the Columbian newspapers from the drainpipe attached to the rear of the building in which he lived. Romano argues that the search was unreasonable since it was made without a warrant and did not fall within any recognized exception. Relying on Work v. United States, 100 U.S. App. D.C. 237, 243 F.2d 660 (1957), he contends the ...


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