U.S. v. Thompson

• Decision Date: 04 March 1983
• Docket Number: No. 82-3320,82-3320
• Citation: 700 F.2d 944
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 944

700 F.2d 944

UNITED STATES of America, Plaintiff-Appellee, v. Ronald THOMPSON, Defendant-Appellant.

No. 82-3320.

United States Court of Appeals, Fifth Circuit.

March 4, 1983.

William Noland, New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., Howat A. Peters, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RANDALL and HIGGINBOTHAM, Circuit Judges, and McDONALD ^*, District Judge.

RANDALL, Circuit Judge:

The defendant, Ronald Thompson, appeals his conviction on two grounds: (1) that the district court should have granted his motions to suppress evidence obtained in a warrantless search of his residence; and (2) that the evidence was insufficient to support his conviction of possession with intent to distribute cocaine. For the reasons set forth below, the defendant's conviction and sentence are vacated and the case remanded for further findings.

I. FACTUAL AND PROCEDURAL BACKGROUND.

This case began when one Norma Figueredo was arrested for various cocaine-related offenses in July of 1981. Presumably in the hope of currying favor with the authorities, Figueredo agreed to become a confidential informant. Over the course of several telephone conversations, and with the assistance of Special Agent Woodfork, she made arrangements with Thompson and codefendant Jesus Hernandez to purchase some cocaine. On September 22, 1981, Figueredo met with Hernandez and Thompson at Thompson's residence in New Orleans, Louisiana. Hernandez provided approximately two ounces of cocaine which was apparently weighed by Thompson. When Figueredo stated that she needed more cocaine, Thompson suggested cutting the substance with some inositol, which he had in his house. Figueredo made arrangements to pick up and pay for the cocaine at Thompson's residence the following day.

On September 23, 1981, Figueredo again went to Thompson's home, this time accompanied by Special Agent Woodfork. Other agents had the Thompson residence under surveillance. Upon arrival at the residence, Figueredo entered the house to consummate the deal while Woodfork waited in the car parked in front. When Thompson appeared at the door, however, Woodfork realized that he and Thompson knew each other and that Thompson might recognize him. The record is unclear as to whether Woodfork was aware of his possible past association with the defendant before Thompson appeared at the door.

After Woodfork saw Thompson, he drove away and met with the surveillance agents to apprise them of the situation. He then approached the residence and attempted to go in, but was stopped by two growling Doberman pinschers. Woodfork again conferred with the other agents and returned to his car. Thompson then approached the vehicle and informed Woodfork that the cocaine was in the house. At this point, Woodfork turned his head towards Thompson, who apparently recognized the agent. Thompson was placed under arrest.

Woodfork next advised the surveillance agents that the confidential informant was still in the house with at least one other suspect. The agents then entered the house. They discovered a substantial quantity of cocaine and marijuana on a weighing scale in the same room where they found Figueredo and Hernandez; the drugs and the scale were seized and introduced into evidence at trial.

The defendant, along with Hernandez, was charged in a two-count indictment on October 2, 1981, with conspiracy to possess with intent to distribute and to distribute cocaine hydrochloride and with distribution of the same in violation of 21 U.S.C. Sec. 841(a)(1), 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2. A superseding indictment returned in April, 1981, charged the same offenses except that count two was changed to possession with intent to distribute.

A hearing on the defendant's motion to suppress the evidence was held before a magistrate on November 9, 1981; the magistrate recommended that the motion be denied. The magistrate's report and recommendation were adopted by the district court. The defendant reurged his motion to suppress immediately before trial, and the motion was again denied. After the government presented evidence, the motion was urged for a third time and for a third time it was denied.

A jury convicted Thompson on both counts. He was sentenced to serve five years on the first count and five years on the second, to run concurrently, and he received a three-year special parole term on count two. This appeal followed.

II. THE MOTION TO SUPPRESS.

The parties stipulated that the drug enforcement agents did not have search or arrest warrants with them at the time they entered Thompson's home. The government maintains that the entry into the home was justified by exigent circumstances, and that once the agents were lawfully on the premises, the evidence was in plain view and therefore subject to immediate seizure. The defendant questions whether there were exigent circumstances justifying the entry, and maintains further that any exigency was deliberately created by the agents, and therefore could not be used to justify the search.

A. Exigent Circumstances.

We must begin our analysis with the understanding that searches conducted without a warrant "are per se unreasonable under the fourth amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnotes omitted) (emphasis in original). These exceptions are "jealously and carefully drawn, and there must be a 'showing by those who seek exemption ... that the exigencies of the situation made [the search] imperative.' " Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), and McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948)). The burden is on the government to show that the search falls within one of the exceptional situations. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1969). In this case, the government claims that the agents entered Thompson's home because they believed that the confidential informant was in danger and in order to prevent the imminent destruction of the evidence.

The problem in this case is that there is a conflict in the evidence about what actually happened that was never adequately resolved by the district court. In denying the third and final motion to suppress, the district court seemed to base its ruling on its finding that the agents entered in order to arrest Hernandez rather than on exigent circumstances:

I think, basically, you're talking about the Plain-View Doctrine. If a police officer is in a place where he has a right to be and he sees in his plain view contraband, then he has a right to seize it. He certainly does not have to go out and get a search warrant under those circumstances, so the issue involved is do they have a right to be inside of the home at the time that the cocaine that was sitting on the scale was seized, and the Court reaches the conclusion that the officers did. They had already made an arrest outside of the home. They had probable cause to believe that a felony was being committed inside of the home, so they had a right to enter the home for the purpose of making an arrest, and in making the arrest, when they get inside and found the contraband in plain view, then the Plain-View Doctrine comes into effect.

I don't think there should be a great deal of emphasis on the notion of exigent circumstances here. I think it's more of the operation of the execution of a lawful arrest and a seizure of contraband that's in plain view that's involved in the case.

Record, Vol. IV, at 258-59. Similarly, just before trial, the court noted that the agents had "probable cause to arrest the other suspects within the home, and under those circumstances the officers and agents had a right to be where they were ... even pretermitting the issue of exigent circumstances ...." Record, Vol. III, at 48. The magistrate who presided over the motion-to-suppress hearing found that the "[agents] entered the residence after the arrest of defendant Thompson outside in order to arrest the other suspect and to protect the confidential informant who had assisted the agents in developing the case." Record, Vol. I, at 94. The magistrate then discussed what circumstances might be considered exigent, but made no specific finding as to whether exigent circumstances existed in this case or what those circumstances were.

To the extent that the court's statements indicate that the denials of the motions were based on the agents' right to enter Thompson's home to arrest Hernandez, the district court's decision is in conflict with Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). See also United States v. Congote, 656 F.2d 971 (5th Cir.1981) (court stated that persons' fourth amendment rights may have been violated when agents made warrantless entry into apartment where cocaine distribution had occurred, but court went on to hold that particular defendant had no standing to raise the issue). In Steagald, the Supreme Court held that absent exigent circumstances, law enforcement officers could not enter a third person's home without a search warrant to arrest a suspected felon, even where they had a valid warrant for his arrest. In Payton, the Court held that the police could not make a warrantless routine felony arrest in a suspect's own home in the absence of exigent circumstances. ¹ Since the agents in this case were not justified in entering Thompson's home in order to arrest his confederate without a warrant or exigent circumstances, we are left with a need for...