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March 23, 1973

Anthony J. COSTA and Velvet J. Barnes

Charles R. Richey, District Judge.

The opinion of the court was delivered by: RICHEY

A. Background and Chronology of Events

 This case came before the Court on May 24, 1972 for hearing on Defendants' Costa and Barnes' Motions to Suppress as Evidence the fruits of a search conducted on April 30, 1971 by the Metropolitan Police Department of Room 314 of the Holiday Inn located at 1501 Rhode Island Avenue, N.W. The instant indictment was filed on February 1, 1972, and is a re-indictment of Criminal Case No. 1533-71 which was dismissed by the United States on March 24, 1972. By stipulation of the parties approved by the Court, all findings and motions theretofore filed in Criminal Case No. 1533-71 were made a part of the record in the instant case.

 The hearing on Defendants' Motions began in the afternoon of May 24, 1972, was reconvened at 9:00 a.m. the following morning, May 24, and concluded with the Court's oral ruling that same afternoon. In all, the official transcript was 131 pages. The Court heard extensive testimony from Officer Miller and Detective Estrada as well as Mr. Lashley, the manager of the Holiday Inn. Based on this testimony and the documentary evidence offered, the Court heard very able oral argument by counsel as to the very serious and difficult Fourth Amendment issue presented by Defendants' Motions.

 Based upon the testimony adduced and arguments and memoranda of counsel, and after a great deal of reflection and deliberation, the Court ruled with some degree of reluctance, in light of the large amounts of narcotics involved herein, that the search of the room at issue had been conducted contrary to the proscriptions of the Fourth Amendment to the United States Constitution.

 In so ruling the Court made the following findings of fact and conclusions of law:

"It is well-known that the Fourth Amendment to the Federal Constitution prohibits unreasonable searches and seizures. And, of course, it is also well-established that reasonableness must be decided on the facts in each particular case, and that good faith is one of the elements that must be considered in deciding whether a search in a given case was reasonable, although this concept is often utilized as a negative factor to invalidate a search where good faith is found lacking.
"To come to the particular point that we must deal with in this case, the court finds as a fact that there was sufficient time for the police to have applied for a warrant to search the premises, and the court further finds as a fact that there were no exigent circumstances shown by the evidence which necessitated action without a warrant.
"Accordingly, since the court has found that there was time to get a warrant, the search was unreasonable, and the motion to suppress will be granted.
"I might say that I make this ruling with some degree of reluctance, but this is the way I view the law, and perhaps a higher court will disagree." (Tr. 131-32).

 The United States thereupon moved for a continuance in order to appeal the Court's ruling and the same was granted. An appeal was filed in the United States Court of Appeals for the District of Columbia Circuit, United States of America, Appellant v. Anthony J. Costa, et al., No. 72-1979, on October 17, 1972.

 Subsequent to the filing of the appeal, in early February of 1973, the case of United States of America v. McKinney, 155 U.S. App. D.C. 299, 477 F.2d 1184 (D.C. Cir., decided January 15, 1973) came to the attention of the Court. Upon a reading of this case, the Court noted that McKinney was factually very similar to the situation presented in the instant case. Since the Court of Appeals in McKinney had upheld a warrantless search quite similar to the one struck down by this Court in the case at bar, the Court felt that it was in the interest of both the Defendants and the United States for the Court to reconsider its prior ruling in light of the McKinney case and allow all counsel, both trial and appellate counsel, to aid the Court by way of an oral hearing and argument.

 With this in mind, pursuant to the procedures set forth in Smith v. Pollin, 90 U.S. App. D.C. 178, 194 F.2d 349 (1952), the Court requested the United States Attorneys Office to move the Court of Appeals to remand the case to the District Court so that the Court could reconsider its ruling. *fn1" This was accomplished, and by order dated March 13, 1973, the Court of Appeals remanded the instant case to the District Court. A hearing was held on March 19, 1973 at which time the United States Attorney and Defendants' appellate and trial counsel argued based upon the record of the suppression hearing, whether the McKinney case was now controlling and should, as a matter of law, alter this Court's prior ruling. As will be discussed in more detail, infra, the United States urged the Court to vacate its prior suppression order arguing that the ...

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