United States v. Bustamante-Gamez

• Decision Date: 24 October 1973
• Docket Number: No. 72-3188,72-3189.,72-3188
• Citation: 488 F.2d 4
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco BUSTAMANTE-GAMEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Abelardo GARCIA-RAMIREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.2d 4 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Francisco BUSTAMANTE-GAMEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Abelardo GARCIA-RAMIREZ, Defendant-Appellant.

Nos. 72-3188, 72-3189.

United States Court of Appeals, Ninth Circuit.

October 24, 1973.

COPYRIGHT MATERIAL OMITTED

Lewis A. Wenzell (argued), Federal Defenders, San Diego, Cal., for defendants-appellants.

Douglas G. Hendricks, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Jeffrey F. Arbetman, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY and TRASK, Circuit Judges, and LUCAS,^* District Judge.

OPINION

DUNIWAY, Circuit Judge:

Bustamante-Gamez and Garcia-Ramirez appeal from their convictions under 21 U.S.C. §§ 841(a), 846, for possessing marijuana with intent to distribute and conspiring to commit that offense. They challenge only the district court's denial of their motion to suppress certain evidence obtained as a result of an allegedly improper search. We affirm.

On August 9, 1972, Customs agents at the port of entry at San Ysidro, California, discovered 40 kilos of marijuana hidden in a compartment above the gas tank of a 1964 Pontiac station wagon which had been driven into the United States from Mexico. The driver said that he had been hired to deliver the car to a parking lot near the San Diego Zoo. The agents accompanied him to this location, and set up a watch.

A short time later the Pontiac was entered by two Mexican-appearing men, who drove it to the 11000 block of Calle Jalapa in San Diego and parked it on the street. A stake-out of this area was set up by the law enforcement officials, whose ranks had by now swelled to include five Customs agents and two San Diego police officers. Of necessity, they positioned themselves out of sight of the Pontiac. After a wait of some twenty minutes, one of the agents discovered, to his horror, that the Pontiac had disappeared. A radio check with the other officers indicated that it had not left Calle Jalapa, and an intensive investigation of that area was begun.

Before losing the Pontiac, the officers had seen the following: When they had first arrived on the scene, three garage doors of the homes on the block were open. The owner of one of those houses, at 11262 Calle Jalapa, directly across the street from where the Pontiac was parked, later identified as one Bill Barsby,¹ had been seen watering his lawn and conversing with a Mexican male who fitted the description of the driver of the Pontiac. Barsby had also been seen driving a red Chevrolet, making a U-turn, and apparently looking at the officers who were conducting the stake-out. The officers now observed that two of the garages were closed, one at 11262 Calle Jalapa, and one on the side of the street located where the Pontiac had been, one house down from that point. The agents' investigation added something to this information. Neighbors informed them that Barsby was normally at work at that time of day, and that young Mexican males had been known to frequent a house near where the Pontiac had been parked. However, that house could not be identified with any particularity, nor had anyone seen the car driven into a garage.

Finally, one of the agents walked up a short driveway to the garage door at the 11262 address and heard sounds which he described as "cloth dragging on the cement floor, a grunt, groan, and a tool hitting the floor." He notified the other officers of his discovery, and they congregated at that house. One of them approached the front door, knocked, and announced that he was a federal officer who was there to make an arrest. Simultaneously another agent opened the garage door, which was unlocked, revealing the Pontiac, the defendant Bustamante, and several kilo bricks of marijuana. Garcia was later found hiding in a doghouse in the back yard.

1. Probable cause.

The primary issue on this appeal is whether the officers had probable cause to believe that the Pontiac was in the garage at 11262 Calle Jalapa. The question is a close one. We hold that, before obtaining information through eavesdropping at the garage door, the officers had probable cause to believe that the car was inside. Certainly they had probable cause to believe that the car was in one or the other of the two recently closed garages. There was nowhere else for it to be. The activities of Barsby, including the fact that he had been observed talking with a man who resembled the driver of the load car, gave them reason to believe that he was in on the plot, and that the car was in his garage rather than the other garage. The eavesdropping confirmed that belief.

2. The validity of the entry.²

The defendants argue that, assuming that the officers had probable cause to believe that the Pontiac was in the garage at 11262 Calle Jalapa, the entry³ upon the driveway to listen, and the entry into the garage were illegal because no warrant was obtained and, as to entering the garage, because the requirements of 18 U.S.C. § 3109 were not complied with. We disagree.

A. The Warrant Issue.

The entry upon the driveway and the later entry into the garage have raised somewhat different legal problems. Before the eavesdropping, the officers did not know whether anyone was in the garage or the house. Whoever put the car in the garage might have left by a route at the back of the house, not visible to the officers. Thus the officers had cause to believe only that the car, loaded with contraband, was in the garage. Entering the driveway was for purposes of "search"—i.e., to overhear. Katz v. United States, 1967, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576. It was not an entry to arrest.

The entry into the garage is different. What the officers heard in the driveway supported a reasonable belief that someone was then working on the car. The Pontiac was "poison." It was known to contain contraband, which could be seized, and the car was subject to possible forfeiture. It was thus a legitimate objective of a search. Moreover, anyone exercising dominion over it was subject to arrest, with or without a warrant. See 26 U.S.C. § 7607(2); United States v. Cisneros, 9 Cir., 1971, 448 F.2d 298, 302. It makes no difference that the officers did not know the identity of whoever was in the garage. United States v. Llanes, 2 Cir., 1968, 398 F.2d 880, 883. The entry into the garage was expressly for the purpose of an arrest.

For the purpose of this case, we assume that the eavesdropping involved an entry upon the curtilage, and thus could be lawfully made, even with probable cause, only under a warrant or under exceptional circumstances permitting entry without a warrant.

It is by no means certain that the entry upon the driveway was contrary to the Fourth Amendment, even though there were no warrant or exceptional circumstances excusing failure to obtain one. The driveway may not have been such a place as to support a reasonable expectation of privacy on the part of the defendants. See Katz, supra, United States v. Fisch, 9 Cir., 1973, 474 F.2d 1071, 1076-1079; Ponce v. Craven, 9 Cir., 1969, 409 F.2d 621, 625; Wattenburg v. United States, 9 Cir. 1969, 388 F.2d 853, 857-858; Cf. Polk v. United States, 9 Cir., 1961, 291 F.2d 230, 232, on remand, N.D.Cal., 1961, 201 F.Supp. 555, afd., 1963, 314 F.2d 837, and, see generally, Note, From Private Places to Personal Privacy; A Post-Katz Study of Fourth Amendment Protection, 43 N.Y. U.L.Rev. 968, 982-86 (1968). However, for reasons that will appear, we need not and do not decide this question.

As we have seen, the entry into the garage was to make an arrest.

At common law, the legality of an arrest entry turned upon the legality of the arrest; if a warrantless arrest was permissible, so was a warrantless entry made for that purpose. See Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 558, 802-06 (1924). For a considerable period of time it was apparently assumed that this doctrine was incorporated into the Fourth Amendment. See Coolidge v. New Hampshire, 1971, 403 U.S. 443, 511-512, n. 1, 91 S.Ct. 2022, 29 L.Ed.2d 564 (opinion of White, J.). However, with the further development of the principle that considerations of individual privacy are at the core of the Fourth Amendment and that the "incident to arrest" and "plain view" doctrines are exceptions to the search warrant requirement, the validity of this assumption began to be questioned. See generally Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan.L.Rev. 995 (1971). Neither this Court nor the Supreme Court of the United States has yet specifically passed upon the issue, and it is therefore one of first impression in this Circuit. Compare Coolidge v. New Hampshire, supra, 403 U.S. at 473-484, 91 S.Ct. 2022 (opinion of Stewart, J.) with id. at 510-512, 91 S.Ct. 2022 (opinion of White, J.) and id. at 492, 91 S.Ct. 2022 (opinion of Harlan, J.). But see Dorman v. United States, 1970, 140 U.S. App.D.C. 313, 435 F.2d 385, 388-391, holding that a warrant is required for an arrest entry absent a showing of urgent need). We need not, in this case, decide this question.

Assuming that the Fourth Amendment requires a warrant for an arrest, as it does for a search, we conclude that in this case both the search (entry upon the driveway) and the arrest (entry into the garage), fall within a well recognized exception to the warrant requirement. Here there were exigent circumstances justifying both entries without a warrant.

This was not a situation in which probable cause is obtained through normal investigative procedures and the officers can procure a warrant and then go to the suspect's residence and make a search or an arrest. Here, they were starting from scratch when the Pontiac disappeared, and they had reason to believe that their presence had been detected. They had reason to believe that Barsby had discovered the stake-out before the load car...