Appeals court throws out drug evidence spotted during warrantless search

The US Court of Appeals for the First Circuit has upheld a lower court's ruling that the federal government can't use evidence collected from an alleged Ecstasy maker's apartment in Brighton because DEA agents and Boston police only applied for a search warrant after officers noticed some of the evidence.

In a decision today, the appeals court rejected government arguments that the DEA was going to seek a search warrant even DEA agents and Boston police conducted what the government now concedes was an illegal search of Siciliano's Surrey Street apartment on Nov. 16, 2006.

Siciliano had agreed to talk to two DEA agents in his apartment. After they concluded he was nervous and being evasive about his alleged purchases of drug-making equipment over eBay, the agents had other DEA agents and Boston police officers enter to the apartment, where they conducted a "protective sweep," during which they allegedly found gelatin capsules in an open bedroom drawer and a plastic bag containing an unknown powder.

At that point, the agents and police "froze" the apartment while they obtained a search warrant. With warrant in hand, they then found 1.3 grams of MDMA, a digital scale, a spatula and computer printouts describing how to manufacture the drug (they also seized his computer, on which they allegedly found child pornography, for which Siciliano is also being charged).

In March, 2008, US District Court Judge Rya Zobel threw out the evidence, ruling that while the first two agents were lawfully in Siciliano's apartment - since he had agreed to let them in - the others were not:

The government asserts that Siciliano's consent to Roberto's and DiTulio's entry extended to the four other officers who participated in the protective sweep. Yet, those officers were hidden from view in their cars on the street and were never mentioned by either Roberto or DiTulio; there is no
evidence that Siciliano knew they were even present. While Siciliano during the initial conversation clearly and explicitly authorized Roberto and DiTulio to come in, it is equally clear that he invited only those two. Given the limited purpose of the entry – to ask questions – and given that the others were never mentioned and Siciliano never saw them, no reasonable person would conclude that the invitation also extended to them. Accordingly, their entry into the apartment violated the Fourth Amendment.

The appeals court agreed, saying that without the capsules and bag of powder obtained during the sweep, the agents didn't have probable cause to apply for a search warrant. Although the government had Canadian and eBay records, the decision notes that a month of surveillance of Siciliano's apartment - and a search of his trash - produced no evidence of drug making, and that one of the agents had decided not to seek a search warrant after the "trash pull" so as to collect more evidence that might better support the case.

In a dissenting opinion, Judge Michael Boudin wrote the government certainly had enough evidence before the sweep to seek a search warrant and that the real issue was that:

... [T]he prosecutor failed to ask the agents in the suppression hearing whether they would have sought a warrant based solely on the tip, the eBay records and the interview.

The DEA began investigating Siciliano in 2005 on a tip from the Royal Canadian Mounted Police that he had purchased chemicals that could be used to make Ecstasy. The DEA then obtained records from eBay showing he had purchased chemicals and glassware that could be used for an Ecstasy lab between 2002 and 2006.