673 F.2d 554 (1st Cir. 1982), 80-1463, United States v. Irizarry

Docket Nº:80-1463.
Citation:673 F.2d 554
Party Name:UNITED STATES of America, Appellee, v. Juan Guilbe IRIZARRY and Jose Garcia Rodriguez, Defendants, Appellants.
Case Date:March 19, 1982
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 554

673 F.2d 554 (1st Cir. 1982)

UNITED STATES of America, Appellee,


Juan Guilbe IRIZARRY and Jose Garcia Rodriguez, Defendants,


No. 80-1463.

United States Court of Appeals, First Circuit

March 19, 1982

Heard Sept. 9, 1981.

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David W. Roman, San Juan, P. R., for defendants, appellants.

H. Manuel Hernandez, Asst. U. S. Atty., Hato Rey, P. R., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and BREYER, Circuit Judges.

COFFIN, Chief Judge.

This case poses a Fourth Amendment challenge to the validity of a warrantless search and seizure by federal agents in Puerto Rico. One defendant also raises the further question of whether his motion for a verdict of acquittal was properly denied. Our review of the record persuades us that the trial court should have suppressed some of the challenged evidence, and that one of the convictions should therefore be reversed.

I. The Facts

During the late evening and early morning of January 28-29, 1980, the United States Drug Enforcement Administration's Puerto Rican office coordinated four or five

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arrest teams as they effected about twenty-three different arrests for federal drug violations. One of those teams was led by DEA Special Agent Swint. Agent Swint's team included a second DEA agent, two FBI agents, and two local police officers. Shortly after midnight Agent Swint learned via radio that Osvaldo Farinas, for whom his team had an arrest warrant, was in a room at the Isla Verde Holiday Inn. The agents parked their cars near the hotel security guard post and walked up to the room.

Agent Swint knocked on the door to the room and called, "Police. Open the door." The room had a plate-glass window next to the door, and the curtain on the window was drawn back about one foot. Agent Swint looked through the window and saw appellant Guilbe withdraw a revolver from a handbag that was resting on the dresser. Agent Swint took cover. Two to three minutes later he called out, "Police, open the door. Come out with your hands up." Three to four minutes later, the door opened and Guilbe emerged with his hands up, followed by appellant Garcia and Farinas. All three were arrested in the hallway, were ordered to lie on the floor, were searched for weapons, and were advised of their rights in Spanish.

Agent Swint then entered the hotel room "to see if there were any other persons inside the room." He went through the main room and entered the bathroom, where he noticed marijuana residue around the sides and the bottom of the bathtub. He returned to the main room and observed two marijuana cigarette butts in the ashtray. Agent Swint told the rest of the agents that there was no one else on the premises, got a bag, and went back to the bathroom to collect the residue from the tub. The three defendants were then taken back into the hotel room.

FBI Agent Philip remained in the hallway for a few minutes. He then entered the room "to see what was happening or what was keeping Special Agent Swint." He walked straight into the bathroom and saw Agent Swint standing inside the bathtub. He looked up at the bathroom's drop ceiling and saw that a soundproofing panel in the ceiling was ajar. He climbed up onto the toilet, looked into the space in the ceiling and saw an object. He reached into the ceiling and removed the object, which turned out to be a package of marijuana and a gun. He then asked for a flashlight, looked in again, and found four packages: two more guns, a package of cocaine, and a second package of marijuana.

Before trial, the defendants moved on the basis of stipulated facts to suppress all evidence found in the hotel room and bathroom. The trial court denied the motions. At a bench trial, the defendants objected to the use of the seized evidence, on the basis of the agents' live testimony. The trial court overruled the objections and found all three defendants guilty of having aided and abetted each other in possessing a measurable quantity of marijuana and in possessing cocaine with intent to distribute it. 18 U.S.C. § 2, 21 U.S.C. §§ 841(a)(1), 844. The court also found defendant Guilbe guilty of possession of a firearm while aiding and abetting the others in their possession with intent to distribute cocaine, 18 U.S.C. § 924(c)(2). Guilbe and Garcia took these appeals. Farinas chose not to rely on the courts and took off.

II. The Fourth Amendment Challenges

  1. Standing of Appellant Garcia

    In order to challenge on Fourth Amendment grounds the use of evidence at one's trial, one must demonstrate "a legitimate expectation of privacy in the area searched". United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). The hotel room here was registered to appellant Guilbe. Appellant Garcia, however, offered no evidence of any personal interest in the room beyond his being "merely present". Indeed, he affirmatively sought to deny any connection with the room or its contents. It was therefore perfectly legitimate to introduce evidence seized from the room against him at trial.

    We realize that the government did not challenge Garcia's standing, either before

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    the trial court or on appeal. That fact, however, does not alone bring us within the rule of Steagald v. United States, 451 U.S. 204, 208-11, 101 S.Ct. 1642, 1645-47, 68 L.Ed.2d 38 (1981), in which a defendant's standing was held to be beyond further challenge. In Steagald the government failed to challenge facts from which the defendant's standing could reasonably have been inferred. In this case, Garcia never carried his initial burden of offering facts from which a court might reasonably infer his standing. See United States v. Miller, 636 F.2d 850, 853-54 (1st Cir. 1980). Moreover, in Steagald the government appeared to have raised the standing issue as part of a last-minute shift in litigation tactics. In this case, there is nothing to suggest that the government was deliberately "sandbagging" the district court or shifting strategies.

    In the discussion that follows, we consider only whether appellant Guilbe was denied a fair trial by the admission of the seized evidence.

  2. Legitimacy of the Agents' Activities

    Since the search of the hotel room followed immediately upon the arrest of the defendants, one might be tempted to analyze it as a search "incident to an arrest", undertaken to preserve the officers' safety and prevent the destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We therefore note explicitly that the government does not invoke the Chimel exception here, because none of the items seized was within the "immediate control" of the defendants at the time of their arrest in the hallway. Id. at 763, 89 S.Ct. at 2040.

    Instead, the government offers a two-step justification for the seizures by Agents Swint and Philip. It argues that Agent Swint was entitled to enter and briefly examine the hotel room because of "exigent circumstances" and that he was then entitled to seize evidence under the "plain view" doctrine. Similarly, the government argues that Agent Philip legitimately entered the bathroom and that the evidence above the bathroom ceiling was in plain view. We analyze these arguments one step at a time.

    1. Exigent Circumstances-Swint's Entry

    In Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971), the Supreme Court summarized the law of warrantless searches as follows:

    "Thus the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions'. The exceptions are 'jealously and carefully drawn', and there must be 'a showing by those who seek exemption ... that the exigencies of the situation made that course imperative'. '(T)he burden is on those seeking the exemption to show the need for it.' "

    This doctrine is often expressed in the shorthand phrase, "warrantless searches are per se unreasonable in the absence of exigent circumstances". Id. at 479, 91 S.Ct. at 2044.

    "Exigent circumstances" have traditionally been found in those crisis situations when there is compelling need for official action and no time to secure a warrant. Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978) (warrantless entry into a burning building to put out a blaze). See also Chimel v. California, supra (search "incident to arrest"); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (warrantless entry in hot pursuit of an armed robber); Ker v. California, 374 U.S. 23, 40-43, 83 S.Ct. 1623, 1633-1635, 10 L.Ed.2d 726 (1963) (warrantless entry to prevent destruction of evidence where such destruction is reasonably thought imminent); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979) (warrantless entry into warehouse at 4:25 a. m. when activity inside reasonably suggests that a breaking and entering is taking

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    place); United States v. Edwards, 602 F.2d 458, 468 (1st Cir. 1979) (warrantless entry to prevent destruction of heroin reasonably thought imminent); United States v. Miller, 589 F.2d 1117, 1126 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979) (warrantless entry and reentry of a boat where drowning suspected and tidal flow created need for swift action).

    In this case, we agree that the government has carried its burden of demonstrating a "compelling need" for Officer Swint to enter the hotel room and perform a post-arrest "security check", in order to determine whether...

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