219 F.3d 882 (9th Cir. 2000), 98-50722, United States v. Cervantes

Docket Nº:98-50722
Citation:219 F.3d 882
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HECTOR MORALES CERVANTES, aka Benito C. Carillo, Defendant-Appellant.
Case Date:June 12, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 882

219 F.3d 882 (9th Cir. 2000)



HECTOR MORALES CERVANTES, aka Benito C. Carillo, Defendant-Appellant.

No. 98-50722

Office of the Circuit Executive

United States Court of Appeals, Ninth Circuit

June 12, 2000

Argued and Submitted November 4, 1999--Pasadena, California

Page 883

[Copyrighted Material Omitted]

Page 884

[Copyrighted Material Omitted]

Page 885

Michael Ian Garey, Santa Ana, California, for the defendant-appellant.

Carmen R. Luege, Assistant United States Attorney, Santa Ana, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Gary L. Taylor, District Judge, Presiding; D.C. No. CR 98-00012 GLT

Before: James R. Browning and A. Wallace Tashima, Circuit Judges, and Robert E. Jones,[*] District Judge.

TASHIMA, Circuit Judge:

Hector Morales Cervantes appeals from his conviction for manufacturing and possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. S 841(a)(1). He contends that the district court erred by admitting into evidence items seized pursuant to an invalid search warrant and by denying his motions for acquittal and a new trial. We have jurisdiction under 28 U.S.C. S 1291, and we affirm.


On January 7, 1998, Police Officer John Yergler responded to a call to contact firefighters at an apartment building in Garden Grove, California. Upon Officer Yergler's arrival at the scene, a firefighter told him that a tenant in Apartment 6 had complained of a strong chemical odor. The firefighter said that the fire department had called the police because it believed

Page 886

there might be a drug lab operating in the building.

As Officer Yergler approached Apartment 6, he smelled a strong chemical odor from approximately 20 feet away. Although he could not identify the chemical, Officer Yergler testified that the odor was similar to a strong solvent, cleaning agent, or an acetone-based chemical. He also believed the odor was consistent with methamphetamine production, which he had been trained to recognize. From his police training, Officer Yergler also knew that chemicals used in methamphetamine labs are explosive.

Officer Yergler then went to Apartment 3, which is directly below Apartment 6, because the chemical odor seemed stronger outside of Apartment 3 than any other apartment. Looking through a space below the blinds of a living room window, he saw two men sitting on a couch. The couch was the only item of furniture in the room. Officer Yergler also looked under the kitchen window blinds and saw a man standing by the kitchen counter and a large pot on the floor. He then looked through a bedroom window and noticed that there was no furniture in that room.

Officer Yergler returned to Apartment 6 and entered it with the permission of the tenant. The tenant had left the apartment with her infant child because she was afraid of harm from the fumes. Unable to find the odor's origin within Apartment 6, Officer Yergler determined that the odor was coming from Apartment 3 because that was where the odor was the strongest. Officer Yergler called for backup and waited until Officer Wasinger arrived.

Concerned about the chemical odor, and fearing that many of the apartment building's tenants would be injured if an explosion occurred, Officer Yergler decided to make contact with the men in Apartment 3. He pounded on the front door and identified himself as a police officer. Getting no response, he looked under the window blinds and saw that the three men had not moved; they remained seated in the living room. Officer Yergler pounded on the door a second time and identified himself. This time, Cervantes came to the window and looked out. Officer Yergler shined his flashlight on himself to show that he was a police officer and ordered Cervantes to "come to the door."1

When Cervantes opened the door, the chemical odor coming from the apartment smelled much stronger to Officer Yergler. Officer Yergler told Cervantes in English that he was investigating the odor coming from the apartment and asked Cervantes if he was aware of the odor. Cervantes did not respond. Instead, he stepped outside and attempted to shut the door behind him, but Officer Yergler pushed the door open. Officer Yergler asked Cervantes in English if he lived in the apartment, but received no response. He then asked the same question in Spanish of all three men; all three responded no.2 Officer Yergler asked Cervantes if he could enter to determine the odor's cause, but Cervantes did not respond3.

Officer Yergler, still concerned about the noxious fumes, entered Apartment 3 with Officer Wasinger following behind him. Once the police officers entered, all three suspects ran from the apartment. Officer Yergler chased Cervantes while Officer Wasinger chased the other two suspects.

Officer Yergler apprehended Cervantes in front of the apartment building and then reentered Apartment 3 to search for an unattended drug lab or other suspects.

Page 887

On the kitchen counter and in a large pot on the kitchen floor, he found a substance he believed to be methamphetamine. He then secured the premises, opened windows to air-out the apartment, and contacted the Garden Grove Police Department's Special Investigations Unit (SIU). While waiting for an investigator to arrive, he asked the apartment manager and assistant manager to help evacuate the tenants from the building and to turn off any open flames.

When Investigator Michael Reynolds of the SIU arrived, he searched the apartment, including the kitchen containing the suspected drugs. Investigator Reynolds then applied for a search warrant, which was granted a few hours later. Upon further searching the apartment, the officers seized 30 pounds of methamphetamine in its final stages of production, cutting agents, a hydraulic press, iodine, Coleman fuel, and other items that could be used to make methamphetamine.

Upon questioning the apartment manager, the police learned that Rufino Vergara, not Cervantes, was the leaseholder of Apartment 3. Neither the manager nor the assistant manager had seen Vergara since he signed the lease in March, 1997. The manager testified at trial, however, that Cervantes had paid the rent to her in person three or four times since the lease commenced. The assistant manager testified that Cervantes told her on at least one occasion that he was Vergara.

Cervantes was convicted by a jury of possessing with intent to distribute and manufacturing methamphetamine. On appeal, Cervantes contends that the district court erred in denying his motion to suppress evidence seized pursuant to the warrant. He also contends that the district court erred in denying his motions for judgment of acquittal and a new trial, in which he argued that: (1) there was insufficient evidence to support his convictions; (2) the government misstated the law during its summation; and (3) the district court erred in admitting another tenant's testimony.


A. Motion to Suppress Evidence

Cervantes argues that the government improperly included information obtained from illegal, warrantless searches in the affidavit filed in support of the search warrant application. Without the illegally obtained evidence, Cervantes contends, the affidavit does not support a finding of probable cause, which is required to obtain a search warrant. See United States v. Bertrand, 926 F.2d 838, 841 (9th Cir. 1991) (quoting United States v. Stanert, 762 F.2d 775, 778-79 (9th Cir.), amended on other grounds, 769 F.2d 1410 (9th Cir. 1985)).

1. Legality of the Searches

We review de novo whether a search is legal under the Fourth Amendment. See Ornelas v. United States , 517 U.S. 690, 699 (1996). We review for clear error the trial judge's findings of fact. See id.

a. The Emergency Doctrine

Generally, the Fourth Amendment prohibits searching a residence without a warrant unless at the time of the search: (1) there is probable cause to believe that contraband or evidence of a crime will be found in the residence; and (2) exigent circumstances are present. See United States v. Lai, 944 F.2d 1434, 1441 (9th Cir. 1991). It is a close question whether probable cause existed when Officers Yergler and Wasinger searched Apartment 34. We need not decide this

Page 888

issue, however, because we conclude that the searches were legal under another theory -the emergency doctrine. Cf. Murdock v. Stout, 54 F.3d 1437, 1441 n.3 (9th Cir. 1995) ( declining to address the emergency doctrine because probable cause and exigent circumstances were present). The emergency doctrine provides that if a police officer, while investigating within the scope necessary to respond to an emergency, discovers evidence of illegal activity, that evidence is admissible even if there was not probable cause to believe that such evidence would be found. See, e.g., People v. Davis, 497 N.W.2d 910, 918 (Mich. 1993); Perez v. State, 514 S.W.2d 748, 749 (Tex. Ct. Crim. App. 1974).

In Mincey v. Arizona, 437 U.S. 385 (1978), the Court noted that "the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonable believe that a person within is in need of immediate aid." Id. at 392. The Court recognized that " `[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.' " Id. (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)). The Court, however, found that a four-day search of an apartment where a homicide had occurred was not reasonable because there was no "emergency threatening life or limb." Id. at 393.

Other circuits have adopted the emergency doctrine. In United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973), officers searched two locked briefcases...

To continue reading