U.S. v. Vega
| Citation | 221 F.3d 789 |
| Decision Date | 08 August 2000 |
| Docket Number | No. 98-41103,98-41103 |
| Parties | (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE RAMON VEGA; REINALDO SANCHEZ IZQUIERDO, Defendants-Appellants |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeal from the United States District Court for the Southern District of Texas
Before POLITZ, SMITH, and DENNIS, Circuit Judges.
Jose Ramon Vega, Reinaldo Sanchez Izquierdo, and Juan Companion were charged with conspiracy to possess with intent to distribute marihuana and possession with intent to distribute marihuana in violation of 21 U.S.C. § § 846 and 841(a)(1) after the police found marihuana in a house rented by Izquierdo and another home rented by Companion. Companion entered a guilty plea. Vega and Izquierdo's motion to suppress evidence of the drugs obtained at the residences was denied. A jury found Vega and Izquierdo guilty as charged and they appeal the denial of their motion to suppress and advance several claimed trial errors.
On January 7, 1998, Officer Rolando Vasquez of the Brownsville Police Department received a telephone call from agents of the Federal Bureau of Investigation advising that an informant had provided information that three individuals would be driving through Brownsville in a dark sedan with Florida license plates, carrying a large amount of cash intended for the purchase of narcotics. The informant cautioned that the men were armed, noting that the three individuals were Cuban and that one had a darker complexion than the others.
The police located an empty sedan fitting the description in a city parking lot in downtown Brownsville and Vasquez put it under surveillance. Shortly thereafter Vega and Izquierdo approached the vehicle but walked around the downtown area for a while before returning and driving away. Vasquez followed the sedan to a residence at 1744 Taft Street. The two men entered same, exiting ten minutes later, stopping briefly at a pay phone, and then proceeding to a residence at 2994 Elena Street. While the police were monitoring the Elena Street residence, a third person, Companion, exited to use a pay telephone across the street and then returned to the house. At this point, none of the officers had seen any signs that these as yet unknown men possessed any drugs, money, or weapons.
The police had neither a search warrant nor probable cause but determined to go to the house and request the owner's consent to enter to search for weapons and narcotics. Vasquez and eight colleagues surrounded the house. Three of the officers went to the front door, one dressed in uniform, the other two wearing bullet proof vests clearly marked "POLICE." One of the officers saw someone inside move quickly to the back of the house. He began to knock, simultaneously calling out "Brownsville police." Vega, obviously aware of the officers' presence, exited the house through its back door and was arrested as he attempted to go into a nearby alley. Vasquez climbed the perimeter fence into the backyard and, hearing "movement" inside the house, he said that he decided to enter same through the door left open by Vega in order to protect the safety of his fellow officers.
Once inside the house, Vasquez said he found Izquierdo and Companion attempting to hide, and he smelled marihuana. He forced Izquierdo and Companion to a position on the floor near the doorway and advised them of their Miranda rights. The two men, when asked, denied that they lived at the residence and claimed instead that the house belonged to Vega. The house was, in fact, under lease to Izquierdo at that time. Vasquez went to the patrol car where Vega was being detained and asked whether he lived at the house. Vega said he did and, when asked for consent to search the residence, he reportedly responded "go ahead."
During the search the police found four buckets of marihuana. They also found a lease agreement reflecting that Companion was the lessee of the Taft Street residence. While still in custody, Companion consented to a search of that residence. In an attempt to expiate himself, Izquierdo began giving the police incriminating information. He told them that there were drugs at the Elena Street residence and that he, Vega, and Companion recently had mailed several boxes of marihuana. The police then returned to the Taft Street residence with Izquierdo and Companion. While waiting for delivery of the keys to the house, which had been in Vega's possession, both Companion and Izquierdo told the police about more marihuana to be found in the house. The police eventually entered the residence, found, and seized the marihuana.
Vega, Izquierdo, and Companion were indicted in one count of conspiracy to possess with intent to distribute in excess of 50 kilograms of marihuana, and three counts of possession with intent to distribute less than 50 kilograms of marihuana. Vega and Izquierdo filed motions to suppress the evidence seized at the time of their arrest and their subsequent statements to the police. After a hearing the district court denied both motions. No reasons were assigned.
Companion entered a guilty plea. A jury found Vega and Izquierdo guilty on all counts. The district court sentenced Vega to 27 months imprisonment to be followed by three years supervised release; Izquierdo was sentenced to 210 months imprisonment and three years supervised release. Vega and Izquierdo timely appealed.
Vega and Izquierdo contend that the district court erred in denying their motion to suppress evidence discovered during the search of the Elena Street residence. The government maintains that the actions of the Brownsville police did not violate the fourth amendment rights of either Izquierdo or Vega. It first contends that neither defendant's interest in the home was sufficient to give rise to fourth amendment protections. It then asserts that the search was lawful despite the absence of a warrant because exigent circumstances necessitated an immediate entry. Finally, the government contends that Vega consented to the search of the residence.
In reviewing the denial of a motion to suppress evidence under the fourth amendment, we 1 The finding of exigent circumstances is one of fact.2 The clear error standard in this instance must be relaxed because the record contains no findings of fact.3 As there are virtually no contested facts, however, our review herein is essentially de novo.
The government insists that neither Izquierdo nor Vega has "standing" to contest the search of the Elena street residence. Whether couched as an issue of standing or the existence of a protected interest,4 the gravamen of the government's position is that neither appellant enjoyed a subjective expectation of privacy in the premises that society is prepared to recognize as reasonable and, therefore, the government's intrusion was not a "search."5 The defendants bear the burden of establishing such an expectation by a preponderance of the evidence.6
As lessee of the residence, Izquierdo's expectation of privacy was reasonable inasmuch as it had "a source outside of the Fourth Amendment ... by reference to [both] concepts of real property ... law" and "understandings that are recognized and permitted by society."7 As we explained in Ibarra, the following factors are considered in the determination whether an interest is protected by the fourth amendment:
whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, whether he took normal precautions to maintain privacy and whether he was legitimately on the premises.8
In Cardozo-Hinojosa, we recognized that fourth amendment protections are "presumptively applicable"9 to premises owned or used by an individual.10 Izquierdo's possessory interest in the house therefore creates a strong presumption of his subjective and reasonable expectation of privacy therein. Clearly Izquierdo, as lessee, had the right to exclude others and was legitimately on the premises. The condition of the house itself exhibited measures in excess of "normal precautions to maintain privacy" and further manifested Izquierdo's subjective expectation of privacy. The entire curtilage of the house was enclosed within a fence. The front porch had a thigh-high iron railing preventing access except through a gate. All windows were covered by iron bars.
The government submits that several actions by Izquierdo and his co-defendants evidence a failure by Izquierdo to take "normal precautions to maintain privacy" in the house. No suggestion is persuasive. Stripped to essentials, the government first suggests that when Vega ran out of the house, Izquierdo's constitutional rights followed. The government contends that the door left open by Vega "expose[d] [the interior of the house] to public view" and that therefore the house "is not a subject of Fourth Amendment protection."11 We reject as untenable the proposition that because one exiting the house left a side door open that Izquierdo's expectation of privacy was in some way diminished.12 Next, the government contends that a "normal precaution" required of one who desires to maintain his privacy is to attempt to prevent raiding government agents from entering the premises. The government faults Izquierdo for not questioning the officers' reason for knocking on the door...
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