452 F.3d 610 (6th Cir. 2006), 05-1512, United States v. Romero

Docket Nº:05-1512.
Citation:452 F.3d 610
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Richard David ROMERO, Israel Santiago, Defendants-Appellees.
Case Date:June 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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452 F.3d 610 (6th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellant,


Richard David ROMERO, Israel Santiago, Defendants-Appellees.

No. 05-1512.

United States Court of Appeals, Sixth Circuit.

June 30, 2006

        Argued: April 21, 2006

        Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 04-90025—Marianne O. Battani, District Judge.

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[Copyrighted Material Omitted]

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        Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellant.

        Randall C. Roberts, Ann Arbor, Michigan, Rhonda R. Brazile, Federal Public Defenders Office, Detroit, Michigan, for Appellees.

        ON BRIEF:

        Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellant.

        Randall C. Roberts, Ann Arbor, Michigan, Rhonda R. Brazile, Federal Public Defenders Office, Detroit, Michigan, for Appellees.

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                Before: MOORE, GRIFFIN, and CUDAHY, Circuit Judges.[*]


        KAREN NELSON MOORE, Circuit Judge.

        In this interlocutory appeal, the United States appeals a decision of the district court suppressing drug evidence in the drug conspiracy trials of defendants-appellees Richard Romero and Israel Santiago. The district court concluded that probable cause did support the warrantless arrests of Romero and Santiago, but that the search that uncovered methamphetamine in Romero and Santiago's hotel room violated the Fourth Amendment and that the drug evidence would therefore be suppressed. The United States argues that the district court misapplied the law when it concluded that the search was not a valid search incident to arrest because the defendants were already restrained in handcuffs at the time of the search and could not reach the nightstand in which the drugs were found. In urging this court to affirm the district court's suppression of the drug evidence, the appellees argue that the officers lacked probable cause to arrest them and therefore that the methamphetamine must be excluded as the fruit of their unconstitutional arrests.

        We conclude that probable cause supported the arrests of both Romero and Santiago, that Romero consented to the initial police entry into the hotel room and that the doctrine of "consent once removed" justifies the backup officers' entry into the room, and that the search of the hotel nightstand was a valid search incident to arrest. We therefore AFFIRM the district court's conclusion that there was probable cause to arrest appellees and REVERSE the district court's suppression of the drug evidence. We REMAND for further proceedings consistent with this opinion.


        On the weekend of June 19 and 20 of 2004, defendant-appellee Romero telephoned undercover police officer James Keiffer in Dearborn, Michigan on several occasions offering to sell him methamphetamine. Romero identified himself as "Richard, Danny's brother," who Keiffer knew from a prior drug investigation to refer to Danny Romero. Joint Appendix ("J.A.") at 112 (Keiffer Test. at 9). Keiffer agreed to buy a half-pound of methamphetamine from Romero for $8,000, and Romero stated that he would travel from New York to Detroit in order to sell Keiffer the drugs. Romero contacted Keiffer again when Romero arrived in town, and told Keiffer that he was staying in room 107 of the Howard Johnson hotel near the airport. Keiffer told Romero that he would send a runner using the code name Bubba over to the hotel to purchase the methamphetamine, but stalled the meeting until he could arrange for other Dearborn police officers to complete the transaction. Keiffer contacted Dearborn police officer Robert Price, who worked with an FBI hotel interdiction task force, and told Price about the sale that Romero had proposed during his phone calls and that Romero was in room 107 of the Howard Johnson hotel with a half-pound of methamphetamine that he intended to sell for $8,000. Price spoke with his supervisor, and they agreed that Price would assemble a team to complete the buy-bust operation. Price's fellow officer Mike McCarthy agreed to pose as Bubba in order to view and purchase the narcotics that Romero

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was attempting to sell. Keiffer gave Romero the number to McCarthy's undercover cell phone so that Romero could arrange the meeting, and from this point on Keiffer was no longer involved in the operation.

        At about 11:00 a.m. on Monday, June 21, 2004, Romero telephoned McCarthy, asked for his code name, and instructed McCarthy to come to the Howard Johnson hotel to look at the drugs, which he referred to as "[c]rank, you know, stuff the biker[]s use." J.A. at 199 (McCarthy Test. at 8). McCarthy attempted to get Romero to meet him in the Howard Johnson parking lot and tried to stall Romero so that the police could assemble a surveillance team that could equip McCarthy with a listening device. When Romero became impatient and stated that he would leave due to the delay, McCarthy agreed to meet Romero in his hotel room, number 107.

        The police had gathered additional information by the time McCarthy went to room 107 to view and purchase the methamphetamine. An El Paso Information Center ("EPIC") search of Romero's name and date of birth revealed that he had a history of drug trafficking.1 Howard Johnson hotel records revealed that room 107 was registered to an Israel Santiago, who, like Romero, was from California. An EPIC search of Santiago's name and date of birth resulted in a NADDIS positive hit for possession of methamphetamine. J.A. at 142 (Price Test. at 39). At this time, however, the police did not know whether Santiago was a separate person or an alias used by Romero.

        The police were unable to secure a wire for McCarthy, and so they assembled an observation room in room 108 directly across the hall from room 107 where they would watch the transaction through the door's peep hole. The officers agreed that McCarthy would put his hand on his head if he felt unsafe and needed backup. When McCarthy knocked on the door of room 107, a man opened the door and asked McCarthy if he was Bubba. McCarthy stated yes, and then asked if the man was Romero. Romero said, "[y]eah," and "[c]ome on in." J.A. at 205 (McCarthy Test. at 14). McCarthy then stepped into the room but stopped when he saw another man, who was later identified as Santiago, sitting on the bed farther from the door and facing the door with his hands hidden. McCarthy was uncomfortable because of the second man in the room and because McCarthy did not have a wire, and so he gave the sign to the backup police officers watching from across the hall. The backup officers then entered the hotel room and took control of Romero. McCarthy identified himself as a police officer to Santiago and asked him to show his hands. Santiago refused, continuing to hide his hands, and stared at the nightstand between the two hotel beds and a few feet away from where he was sitting on the bed. McCarthy then took control of Santiago, placing him on the floor and handcuffing him. McCarthy informed other officers in the room that Santiago kept staring at the nightstand, and those officers opened the door of the nightstand and found a folded towel that contained plastic bags filled with a white powder later identified as methamphetamine.

        Romero and Santiago were indicted on charges of conspiracy to distribute methamphetamine

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in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Romero filed a motion to suppress the methamphetamine found in the hotel room as well as his statements made at the time of his arrest, and Santiago joined the motion. The district court conducted an evidentiary hearing on December 2, 2004, and also requested supplemental briefings from the parties. At a hearing on February 17, 2005, the district court concluded that the officers had probable cause to arrest Romero and Santiago but suppressed the methamphetamine because the court determined that there were no exigencies that justified the warrantless search and that it was an invalid search incident to arrest because the nightstand was not "in the proximity for somebody to grab or for the safety of the officers." J.A. at 93-94 (Bench Op. Tr. at 13-14). The court denied Romero's motion to suppress his statements because he was properly read his Miranda rights before he made his statement. J.A....

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