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UNITED STATES v. NOLAN

December 3, 1981

UNITED STATES of America, Plaintiff,
v.
Charles Wallace NOLAN, Jr., Defendant



The opinion of the court was delivered by: TEITELBAUM

I.

The defendant, Charles Wallace Nolan, Jr., has been charged in a seven count indictment with various violations of the federal drug laws. As is typical in such cases, the defendant has filed a number of pretrial motions, including a motion to suppress physical evidence. On September 28, 1981, this Court ruled on all the pretrial motions and indicated that explanations for those rulings would be the subject of further opinions. By Opinion dated October 1, 1981, the Court explained its rulings on all the pretrial motions except the motion to suppress physical evidence. It is the explanation of the ruling on the motion to suppress which now concerns the Court.

 II.

 On September 9, 1980, Special Agent John M. Guseman of the Drug Enforcement Administration received a tip from Shipley Patrick Danko. Mr. Danko said that Charles Nolan was rumored to be in the general Pittsburgh area and that when Mr. Nolan had been in the area on prior occasions he stayed in motels in Belle Vernon, Pennsylvania. Agent Guseman relayed this information to Inspector Paul Pongrace of the United States Marshal's Service. Inspector Pongrace had an arrest warrant issued nearly two years earlier, on October 3, 1978, by the United States Parole Commission for Mr. Nolan's arrest for federal parole violations. Mr. Nolan was on parole following a previous conviction in Federal District Court in Kansas for importation of marijuana. Inspector Pongrace, as an officer in the United States Marshal's Service, was vested with the statutory obligation and responsibility to locate parole violators. He pursued the tip he received from Agent Guseman by traveling to Belle Vernon with another officer from the Marshal's Service, Deputy Holland. They took along the arrest warrant and a photograph of Mr. Nolan.

 In Belle Vernon, they began to canvass the various motels in an effort to locate Mr. Nolan. At each motel the inspector identified himself, showed the motel manager or desk clerk the photograph of Charles Nolan, and asked if he or she could identify the person depicted in the photograph. At one motel, the 5M Motel, the inspector was told that person in the photograph was known as Rocco Favorite, and that he had most recently stayed at the motel in June of 1980. Visits to some other motels were uneventful.

 Inspector Pongrace arrived at the Motel 6 around 2:00 P.M. There he was told by Mrs. McSpadden, the desk clerk, that the person in the photograph was known as Rocco Favorite and more importantly, the inspector was told that "Mr. Favorite" was currently registered at the motel in Room 48. Mrs. McSpadden also stated that "Mr. Favorite" had reregistered at 12:30 P.M. for an additional night, that he appeared to return to his room thereafter, that she had not seen him leave his room, and that on prior stays he spent a great deal of time in his room.

 Inspector Pongrace and Deputy Holland proceeded to Room 48; a room with two windows, on the ground floor, at the rear of the motel. They observed that the door to Room 48 was less than twenty feet from the rear exit of the motel and that the parking lot was next to the rear exit. The officers noted that the door to Room 48 was made of steel and that the lock on the door appeared to be a type of security lock that prevented anyone without a special master key from inserting a key completely into the lock to unlock the door from the outside when a button was depressed on the inside of the door. Listening at the door, the officers heard the sounds of television or a radio.

 Inspector Pongrace was also aware that state police, while investigating the fatal shooting of a state police officer on June 13, 1979, *fn1" found an address in Canada for Charles Nolan in the wallet of a suspect in that shooting. While Inspector Pongrace did not know how closely, if at all, Charles Nolan was acquainted with the suspect in the shooting, he did know that the address in Canada had been confirmed as the address of Charles Nolan.

 After hearing the television or radio in Room 48, Inspector Pongrace returned to the front desk of the motel for a passkey. Mr. McSpadden, the manager, returned to the door of Room 48 with the inspector. When they arrived at the door, Inspector Pongrace instructed Mr. McSpadden to knock on the door, say, "manager," put the key in the lock, unlock the door and with the inspector's assistance open the door. Mr. McSpadden was also instructed to remain as far out of the way as he possibly could. Mr. McSpadden followed the instructions of the inspector in the sequence listed. From the time of the initial knock until the door opened almost no time elapsed. As the door opened, Inspector Pongrace and Deputy Holland entered the room and simultaneously identified themselves. They proceeded immediately to the center of the room, looked into the bathroom, determined that no one was present and quickly exited leaving the room exactly as they had found it. The marshal's stay in the room was no more than thirty seconds. They observed that the television was on, and that several syringes, some spoons with powder on them, a bottle labelled "lactose," and a foil and cellophane packet with powder on the cellophane lay upon a table.

 After leaving the room, Deputy Holland endeavored to watch for Mr. Nolan's return and yet avoid being recognized as a law enforcement official. Inspector Pongrace made two brief phone calls requesting additional manpower. He called his own office and as a result Chief Deputy Morphy and Deputy Smaltz were dispatched to Belle Vernon. In addition, Inspector Pongrace called Agent Guseman, who the inspector knew was interested in Mr. Nolan in connection with an investigation of narcotics trafficking. The inspector told Agent Guseman that he had a solid lead on Charles Nolan and suspected the presence of narcotics. The inspector requested Agent Guseman to come to Belle Vernon with a two-fold purpose in mind; obtaining additional manpower and the expertise of someone able to make positive field tests for the presence of narcotics. All the officers implicitly recognized the urgent need to create a more controlled environment for apprehending Charles Nolan,-i.e. one where they could positively identify him and cut off his avenue of escape before he saw them and fled. It was in recognition of this urgency that the phone calls were kept brief and the additional officers hurried to Belle Vernon.

 At approximately 3:30 p.m., the additional marshals and Agent Guseman arrived at the motel. All the officers participated in a stakeout designed to arrest Mr. Nolan before he arrived in his room for the officers genuinely desired to avoid the difficulty of making a forced entry into the motel room through the steel door with the security lock and to avoid the possible destruction of the suspected narcotics during any interval while forcing their way in. Inspector Pongrace took up a position near the parking lot entrance, Agent Guseman was stationed in the hallway above Room 48, and the other officers took up other various positions. At approximately 4:45 p.m., Inspector Pongrace identified Mr. Nolan as the sole occupant of an automobile entering the parking lot and the inspector started toward Room 48. Agent Guseman did not identify Mr. Nolan until he stepped out of the automobile which he parked next to the rear entrance of the motel. Agent Guseman proceeded down the steps, making efforts not to alarm Mr. Nolan by running. However, Mr. Nolan disappeared into his room before either Inspector Pongrace or Agent Guseman arrived at the door of Room 48.

 Because the officers feared that Mr. Nolan might attempt to destroy the objects seen on the table by Inspector Pongrace, objects suspected to be narcotics and related paraphernalia, if they knocked and announced their authority and purpose, these well trained law enforcement officials decided to repeat the method that they had initially used to gain entry. Inspector Pongrace again had Mr. McSpadden knock on the door, say, "manager," put the key into the lock and unlock the door. As the door cracked open, Agent Guseman shouted, "police," and displayed his badge. Mr. Nolan's face was seen briefly at the door and the door began to swing closed because of pressure from the inside. The officers collectively pushed the door open, and engaged in a brief struggle to subdue Mr. Nolan. Mr. Nolan was handcuffed, told he was under arrest for violating parole and read his Miranda rights. The objects initially seen on the table during Inspector Pongrace's first entry remained on the table and were seized. Mr. Nolan and the room were searched. The search disclosed a number of items which the government intends to introduce into evidence. *fn2" Specifically, the search disclosed: 1) a foil and plastic wrap of material containing white powder in the defendant's sock; 2) a small plastic bag of white powder in a book; 3) two cards labelled "Singh's Emporium" in a wallet in an air travel bag; 4) an international driver's license in the name of Rocco Favorite bearing a picture of Mr. Nolan in the travel bag; 5) a passport issued in the name of Harold Mathers containing Mr. Nolan's photograph and a biographical outline of the Mathers' family in the travel bag; 6) a birth certificate in the name of Harold Mathers which was zippered into a money belt that fell off Mr. Nolan's arm during the struggle; 7) and a piece of hashish was found in Mr. Nolan's pocket. This search was considered necessary because Mr. Nolan was going to be transported immediately to the Allegheny County Jail *fn3" for resumption of his sentence and the policies of that institution forbid a prisoner to carry a weapon or other items considered "contraband" by prison officials. *fn4"

 III.

 A.

 The defendant argues that the physical evidence located by the officers on his person, and in his motel room, should be suppressed because the officers did not knock, and announce their authority and purpose before their first entry. The defendant continues that the same defect also existed with respect to the second entry. Furthermore, the defendant contends that since the first entry was improper any reliance by the officers on knowledge gained during the first entry, particularly their observation of suspected narcotics and related paraphernalia, to justify their mode of entry on the second occasion to prevent the destruction of evidence constituted an improper use of "fruit of the poisonous tree."

 In addition, the defendant suggests that the officers should have sought a search warrant after making their first entry. However, the defendant opines that any such warrant would be invalid since the officers lacked sufficient, untainted information to establish probable cause to search the room. As no warrant was sought or issued, this Court finds no reason to comment on this argument. Finally, the defendant avers that the length of time from the issuance of the arrest warrant to its execution was per se unreasonable. However, the defendant admits that no case holds that a delay in executing an arrest warrant invalidated an arrest. This Court perceives no reason in law or in the facts of this case to rule ...


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