U.S. v. Acevedo, 79-2016
| Decision Date | 05 August 1980 |
| Docket Number | No. 79-2016,79-2016 |
| Citation | 627 F.2d 68 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bernardino ACEVEDO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William H. Kampenga, Oak Lawn, Ill., for defendant-appellant.
Thomas P. Sullivan, U. S. Atty., Kevin E. Sharkey, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before SPRECHER and WOOD, Circuit Judges, and EAST, Senior District Judge. *
On February 23, 1979, agents of the Drug Enforcement Administration forcibly entered Bernardino Acevedo's apartment without a warrant and therein arrested him. On April 15, 1980, the United States Supreme Court held violative of the fourth amendment warrantless nonconsensual entries to effect in-home arrests in the absence of exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Consequently, the issue we face is whether the agents entered Acevedo's apartment under circumstances that may properly be characterized as exigent, that is, requiring immediate action.
Agents Kenneth Adams and Patricia Collins, working undercover, met with Acevedo's associate, Luis Ramos, on February 13, 1979, to negotiate a heroin purchase. At Ramos' insistence, the agents drove Ramos to a parking lot next to a tavern on the north side of Chicago. Ramos then left the agents' auto and walked towards two adjacent row-type buildings, one of which housed the tavern. Ten minutes later, Ramos returned with an ounce of heroin, which he sold to the agents for $820. On February 22, the agents again met Ramos, this time to negotiate purchase of a pound of heroin. Ramos indicated he could not secure such a large quantity until the following afternoon but that his source had an ounce available for immediate sale. The agents and Ramos then drove to the parking lot where they had transacted business the previous week. As before, Ramos left the car, walked towards the buildings, and returned shortly with the heroin, for which the agents paid him $825. On this occasion, however, another agent observed Ramos leaving the building immediately adjacent to the tavern.
On February 23, 1979, the date of the challenged arrest, the agents met Ramos to close the deal on the pound of heroin. Ramos informed them that his source had only ten ounces available for sale. The agents agreed to purchase that quantity and once again at Ramos' direction drove to the tavern parking lot. Ramos then entered the tavern, returning a short time later to report that his source was not at his residence. Twenty minutes later, Ramos and agents Adams and Collins entered the tavern, whereupon Ramos contacted his source by telephone. Acevedo shortly arrived at the building adjacent to the tavern. Ramos then directed the agents to return to their car while Ramos entered the first floor apartment and therein met Acevedo. After a short conversation with Acevedo, Ramos returned to the parking lot and informed the agents that his source had only three or four ounces available at the moment but would have six more ounces available two hours later. The agents agreed to the immediate purchase of four ounces, whereupon Ramos returned to the first floor apartment. When Ramos arrived, a surveillance agent located off a gangway separating the tavern from the apartments observed through a window that Acevedo removed a small package from a table and handed it to Ramos. 1 Ramos then returned to the parking lot, exchanged approximately four ounces of heroin for $3,200, and was arrested.
At the scene of and immediately after the arrest, Ramos informed the agents that his source was in the first floor apartment of the building adjacent to the tavern. Six agents, accompanied by Ramos, then converged on that apartment, knocked, announced their office, and upon receiving no response, forced the door open. Inside, the lights were on, and a video tape machine was playing, but Acevedo was nowhere to be found. Ramos suggested he was in the second floor apartment from which he had recently moved. After again knocking on the door of that apartment, announcing their office, and receiving no response, the agents forcibly entered. Inside they discovered Acevedo hiding in a closet and arrested him.
A grand jury charged Acevedo with distribution of approximately four ounces of a mixture containing heroin, a Schedule I substance, in violation of 21 U.S.C. § 841(a)(1). At a pretrial suppression hearing, the district court ruled several items of physical evidence and certain post-arrest statements were admissible as incident to a lawful arrest. Subsequently, the district court found Acevedo guilty as charged and sentenced him to three years imprisonment and three years parole. Acevedo appeals the district court's finding that the arrest, though executed after a forcible entry into his home without a warrant, was lawful as a response to exigent circumstances.
In Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970), the District of Columbia Circuit, anticipating by a decade the Payton result, identified a number of factors relevant to the determination whether exigent circumstances justify warrantless entry of a suspect's home to effect a felony arrest. 2 Although some or all of the factors listed in the margin may be relevant to a particular case, the limitless array of factual settings that may arise caution against a checklist-type analysis. See United States v. Adams, 621 F.2d 41, at 44 (1st Cir. 1980). Dorman better serves as a guide to resolution of the underlying pragmatic question whether the exceedingly strong privacy interest in one's residence is outweighed by the risk that delay will engender injury, destruction of evidence, or escape. Since the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972), those asserting the propriety of their entry bear a heavy burden of showing they had an urgent need to cross the threshold without a warrant.
The Government met that burden in this case. There was a clear showing of probable cause that Acevedo had engaged in the distribution...
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