U.S. v. Romero

Citation692 F.2d 699
Decision Date04 November 1982
Docket Number80-2198,Nos. 80-2181,s. 80-2181
Parties12 Fed. R. Evid. Serv. 170 UNITED STATES of America, Plaintiff-Appellee, v. Carlos Richard ROMERO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Anthony SENA, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Charles R. Finley of Warner & Finley, Albuquerque, N.M., for defendant-appellant Carlos Richard Romero.

R. Raymond Twohig, Jr., Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant Joseph Anthony Sena.

Wayne G. Chew, Asst. U.S. Atty., Albuquerque, N.M. (R.E. Thompson, U.S. Atty., and James F. Blackmer, Asst. U.S. Atty., Albuquerque, N.M., with him on the brief), for plaintiff-appellee.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Carlos Richard Romero and Joseph Anthony Sena appeal their convictions for possession of marijuana with the intent to distribute it, a violation of 21 U.S.C. Sec. 841(a)(1). On appeal the issues are whether the trial court committed reversible error when it (1) refused to suppress marijuana seized from Sena's home on the ground that the affidavit supporting the search warrant contained false statements; (2) refused to suppress marijuana obtained from Romero's pants pocket and van on the ground that the police officers' seizure was illegal; (3) allowed the government to introduce into evidence two revolvers seized from Romero's van; (4) refused to admit a co-indictee's written statement absolving Romero of involvement in the crime; and (5) refused to admonish the jury to disregard an officer's testimony concerning admissions by Romero because the officer had not advised Romero of his Miranda rights before interrogation.

Viewing the evidence in the light most favorable to the government, as we must when reviewing criminal convictions on appeal, the relevant facts are as follows. Drug Enforcement Administration (DEA) Agent Lester Toole received an anonymous tip that between forty and sixty pounds of sinsemilla, a high-grade marijuana, and some cocaine and heroin were located at the home of Billy Sena, a suspected drug dealer. Toole informed the Albuquerque police department of the tip, and the department dispatched Officers Erekson, Espinosa, and Ortiz to conduct surveillance at Sena's home. As the officers drove by the home, they observed appellant Romero, whom the officers suspected of being a drug dealer, and Joe Adelaido Ortega carrying five grocery sacks to a van. Romero and Ortega entered the van and drove away. After Romero and Ortega had driven about a mile, the officers had a second police car stop the van. Drawing their weapons, the officers ordered Romero and Ortega out of the vehicle. While the officers were questioning the men, Officer Erekson patted down Ortega for weapons and Officer Espinosa patted down Romero. Meanwhile, Officer Ortiz peered through the windows of the van. When he opened the door on the driver's side to inspect the front seat area for weapons he smelled a strong odor of marijuana. Then while walking around the van to check the passenger side for weapons, Ortiz told the other officers, "It smells like a ton of dope in there."

About the same time, Officer Espinosa was completing his pat-down of Romero. Espinosa felt a stiff bulge in Romero's left front pants pocket; he reached in and pulled out a packet of cigarette rolling papers and a plastic bag containing three hundredths of an ounce of marijuana. Shortly thereafter the officers arrested both Romero and Ortega.

The officers next obtained warrants to search Romero's van and Billy Sena's home. In the van they found two revolvers and, in three of the five grocery sacks, about seven pounds of marijuana. At Sena's house they found several pounds of marijuana and weighing scales. There they arrested appellant Joseph Anthony Sena, Billy Sena's son.

Sometime before trial Ortega disappeared. Romero's and Sena's trials were consolidated, and a jury found them guilty of possession of marijuana with intent to distribute.

I

Sena contends that because the affidavit supporting the warrant to search his home contained false statements, the trial court should have suppressed all evidence seized from his home. The affidavit stated:

"[T]he marijuana [seized from Romero's van] was seedless ('sin semilla' marijuana--very expensive, high-grade marijuana)--further corroborating the apparently eyesight observations of Agent Tuell's source. The Source advised Agent Tuell that there 'IS' marijuana and cocaine and heroin in above-said premises with Billy Sena, and this Source said there were '40 to 60 pounds' of 'Sin Semilla' marijuana in above premises--now corroborated by above seizure of marijuana as said above."

R. I, 29. As it turned out, the marijuana seized from Romero's van and Sena's house was not sinsemilla, but marijuana of a lower grade.

Upon a defendant's request, the trial court must conduct a pretrial hearing if "the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). If the defendant establishes by a preponderance of the evidence the allegations of perjury or reckless disregard of the truth, and if the affidavit's remaining content is insufficient to establish probable cause, evidence obtained by means of the search warrant must be suppressed. Id. at 156, 98 S.Ct. at 2676.

At the pretrial hearing Sena introduced no evidence showing that the officers made the false statements knowingly or with reckless disregard for the truth. The trial court, therefore, was correct in not suppressing evidence seized from Sena's home.

II

Romero's principal contention is that the Albuquerque police violated his Fourth Amendment rights by stopping his van, by searching the driver and passenger areas of his van for weapons, and by seizing the packet of marijuana from his pants pocket.

The Stop

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court recognized that in appropriate circumstances a police officer may stop a person for questioning even though he does not have probable cause to arrest. The police officer must reasonably suspect the person is engaged in or about to engage in unlawful activity, and his suspicion must be based on "specific and articulable facts [and] rational inferences from those facts." Id. at 21, 88 S.Ct. at 1879. The Court has applied Terry to car stops. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979).

Romero argues that the Albuquerque police officers did not possess the "specific and articulable facts" necessary to justify stopping his van. We disagree. The police officers had received an anonymous tip that there were large quantities of marijuana at the home of Billy Sena, a suspected drug dealer, and had thereafter personally observed Ortega and Romero, another suspected drug dealer, leave Sena's house with five grocery sacks and drive away in a van. Although this information did not give the officers probable cause to arrest Romero and Ortega, we believe the police officers could reasonably suspect Ortega and Romero were engaged in unlawful activity and could stop their vehicle to question them. In these circumstances, a police officer is not required "to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d 612 (1972).

The Search of the Van

After the police ordered Romero and Ortega to step out of the van and as the police were searching the men for weapons, Officer Ortiz opened the driver's side of the van and peered in. He then walked to the passenger side of the van, opened the door, and looked in. Romero objects to Officer Ortiz' conduct on two grounds. First, contrary to the officer's testimony, Romero claims that Ortiz did not simply search the van for weapons, but also for criminal evidence. Second, Romero argues that even if Officer Ortiz was searching only for weapons, the search was unjustified because the officers had ordered Romero and Ortega to step out of the van, and the two men could not possibly have reached into the van for weapons.

Viewing the evidence in the light most favorable to the government, see United States v. Rios, 611 F.2d 1335, 1344 (10th Cir. 1979), we conclude that Officer Ortiz was searching only for weapons. At the suppression hearing, Ortiz stated that he had searched the van only for weapons, not for criminal evidence. Nothing in the record contradicts his testimony.

We also reject Romero's second contention. Just as officers may search a car for weapons incident to a lawful arrest, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), officers who lawfully have stopped a suspect and reasonably fear he may be armed and dangerous may search for weapons on the suspect's person, Terry, 392 U.S. at 24, 27, 88 S.Ct. at 1881, 1883, and may conduct a limited search for weapons in the suspect's car, United States v. Rainone, 586 F.2d 1132 (7th Cir. 1978), cert. denied, 440 U.S. 980, 99 S.Ct. 1787, 60 L.Ed.2d 239 (1979); United States v. Green, 465 F.2d 620, 624-25 (D.C.Cir.1972); cf. United States v. Johnson, 637 F.2d 532 (8th Cir. 1980) (officers may search suspect's duffel bag). The suspect may have hidden a weapon in a part of the car readily accessible to him. He may break away from the police and grab the weapon or, if allowed to return to the car, he may shoot or harm an officer. The officers reasonably could suspect that Ortega or Romero were armed, since in other investigations of Romero, Officers Erekson and Espinosa had discovered that Romero was armed.

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