306 F.3d 973 (9th Cir. 2002), 01-50615, U.S. v. Chavez-Miranda

Docket Nº:01-50615.
Citation:306 F.3d 973
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Tomas CHAVEZ-MIRANDA, Defendant-Appellant.
Case Date:September 30, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 973

306 F.3d 973 (9th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Tomas CHAVEZ-MIRANDA, Defendant-Appellant.

No. 01-50615.

United States Court of Appeals, Ninth Circuit

September 30, 2002

Submitted[*] Aug. 5, 2002.

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

John S. Gordon, U.S. Attorney; John C. Hueston, Assistant U.S. Attorney; John D. Early, Assistant U.S. Attorney, Santa Ana, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-00-00036-AHS-2.

Before: T.G. NELSON, PAEZ and TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

We must determine if the trial court correctly denied defendant-appellant Tomas Chavez-Miranda's motion to suppress evidence obtained from a search of his apartment during a narcotics investigation. The district court took evidence at a two-day suppression hearing and held that (1) there was probable cause in support of the search warrant; (2) a Franks hearing [1] was not warranted; and (3) forcible entry after 20 to 30 seconds did not violate 18 U.S.C. § 3109 (the "Knock and Announce Rule"). Chavez-Miranda conditionally pled guilty to conspiracy to possess with intent to distribute and to distribution of heroin under 21 U.S.C. §§ 841, 846, so he could appeal the denial of his motion to suppress. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I

We examine the sufficiency of the evidence to establish probable cause for a search warrant issued for Chavez-Miranda's apartment after an extensive narcotics trafficking investigation. On February 29, 2000, agents of the Drug Enforcement Administration ("DEA") established surveillance at the Santa Ana, California, home of co-defendant Jose Magana (the "Camille Residence"),2] where a confidential source (the "informant") purchased one ounce of heroin from Magana. On March 9th, the informant arranged a second controlled buy. When Magana arrived at the Camille Residence at 5:22 p.m. he was accompanied by Chavez-Miranda, who left shortly thereafter. The informant arrived at the Camille Residence at 6:00 p.m. and purchased five ounces of heroin from Magana.

On March 20th, the informant conducted two additional controlled buys from Magana. The buys, each for five ounces of heroin, were arranged spontaneously in an effort to identify Magana's supplier. At 4:30 p.m., the informant contacted Magana to set up the first buy. Magana left the Camille Residence shortly thereafter. Magana contacted the informant at 6:15 p.m. and stated that he now had the heroin. The DEA spotted Chavez-Miranda's car at the Camille Residence at the same time. The informant entered the Camille Residence and was introduced to Chavez-Miranda, who left shortly thereafter. The informant then purchased five ounces of heroin from Magana and set up the second buy of the day for later in the evening.

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Magana said he had to contact his "friend" to get the heroin.

The DEA followed Chavez-Miranda as he drove from the Camille Residence to his apartment (the "MacArthur Apartment"). Chavez-Miranda arrived at 7:00 p.m. and used an electronic access device to enter the parking lot of the gated community. Agents determined that the electric utility service for the MacArthur Apartment was subscribed under the name Miranda. At 7:15 p.m., the DEA observed Chavez-Miranda leave the MacArthur Apartment and return to the Camille Residence. At 7:28 p.m., Chavez-Miranda stopped outside the Camille Residence. An unidentified person briefly leaned into Chavez-Miranda's car, then Chavez-Miranda drove away. Magana called the informant approximately two minutes later and stated that the heroin had arrived. Chavez-Miranda engaged in counter-surveillance techniques as he drove from the Camille Residence back to the MacArthur Apartment—driving erratically, varying his speed, and frequently looking in his mirrors. Meanwhile, the informant completed the fourth and final controlled heroin purchase from Magana.

On March 25th, the informant arranged to purchase 100 ounces of heroin from Magana. On the 27th, Magana told the informant that he had 100 ounces ready for sale at the Camille Residence. On the 29th, DEA Special Agent John Difelice III, the lead case agent investigating Magana and Chavez-Miranda, submitted a 16-page sworn affidavit in support of an application for search and arrest warrants, which described the events related above. A magistrate judge issued search warrants the same day for both the Camille Residence and the MacArthur Apartment and arrest warrants for Magana and Chavez-Miranda.

On March 30, 2000, at about 4:43 p.m., officers executed the first search warrant at the Camille Residence, where they found approximately 2.9 kilograms of heroin and a loaded pistol. Magana was taken into custody at the Camille Residence, waived his constitutional rights, and informed the arresting officers that Chavez-Miranda was his supplier. Magana told the arresting officers that he would not contact Chavez-Miranda, however, because he feared that Chavez-Miranda would harm Magana's family if he did so.

At approximately 6:15 p.m. that same day, officers preparing to serve the second search warrant observed Chavez-Miranda and a woman with a child enter the MacArthur Apartment. Santa Ana police and DEA agents waited about 45 minutes, then executed the search warrant. Santa Ana Police Investigator Ruben Ibarra, who led the entry team, had been to the apartment complex in the past. The entry team knew that the small two-bedroom apartment occupied less than 800 square feet. Ibarra knocked on the door and said, first in English then in Spanish, "Santa Ana Police, we have a search warrant, open the door." Chavez-Miranda later testified that he heard knocking and understood the word "police." The district court found that the entry team waited 20 to 30 seconds without receiving any response before forcing the door open with a battering ram.

II

On appeal of the denial of a motion to suppress evidence, we review conclusions of law de novo and factual findings for clear error. United States v. Hammett, 236...

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