713 F.2d 79 (5th Cir. 1983), 82-1457, United States v. Hultgren

Docket Nº:82-1457.
Citation:713 F.2d 79
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Warren C. HULTGREN, Jr., Fonda Gayle Hellums and Donald Thomas Rondinelli, Defendants-Appellants.
Case Date:August 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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713 F.2d 79 (5th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Warren C. HULTGREN, Jr., Fonda Gayle Hellums and Donald

Thomas Rondinelli, Defendants-Appellants.

No. 82-1457.

United States Court of Appeals, Fifth Circuit

August 11, 1983

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[Copyrighted Material Omitted]

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Warren Burnett, Larry Zinn, Galveston, Tex., for Hultgren and Hellums.

Blake Hansen, Odessa, Tex., Court-appointed, for Rondinelli.

Sidney Powell, Ricardo Gonzalez, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before WILLIAMS and JOLLY, Circuit Judges, and PUTNAM [*], District Judge.

JERRE S. WILLIAMS, Circuit Judge.

This case arises out of a Drug Enforcement Administration (DEA) investigation and an alleged precipitant arrest following the failure of a confidential informant's transmitter during a drug deal. Appellants Warren G. Hultgren, Jr., and Donald T. Rondinelli challenge the district court's denial of their motions to suppress the evidence seized pursuant to their warrantless arrests within the home of the third defendant to this appeal, Fonda G. Hellums. Further, appellants Hultgren and Hellums challenge their convictions on the ground that their indictments were factually insufficient in that they failed to state the period of time during which the conspiracy alleged was operative. We find that the warrantless arrests of Hultgren and Rondinelli, as well as the search incident thereto, were proper. Further, we conclude that the indictments against Hultgren and Hellums were sufficient. Accordingly, we affirm.

I. Facts

On February 2, 1982, using confidential informant Bruce Foster, DEA agents recorded a meeting concerning a drug transaction between appellant Hellums, co-defendant Stephen J. Sadowski 1 and Foster at Hellums' residence. After Sadowski introduced Hellums to Foster, Hellums left the house. When she returned, she sold Foster approximately one ounce of cocaine. No arrests were made at that time.

On March 1, 1982, near midnight, Foster informed DEA agent Howard Whitworth that a cocaine deal with Hultgren and Hellums was to "go down" sometime on March 2, 1982. At 3:00 p.m. on March 2, Foster informed Whitworth that a sample was to be delivered at about 5:00 p.m. at Hellums' home, located in a residential area of Midland, Texas. At that time the final arrangement for the transaction would be made. At 6:20 p.m., Foster again contacted the DEA agent and told him that he had met with Hultgren and Hellums, received a sample of the cocaine, and set the transaction for the larger quantity for 8:00 p.m. that evening. Foster then proceeded to a Midland hotel, pursuant to the agent's instructions. The agent had the sample tested at 7:00 p.m. and ascertained that it was cocaine. Foster was then searched, as was his car, and Foster was fitted with a transmitter. At 7:30 p.m. Foster returned to Hellums' house where the delivery was to take place. DEA surveillance was established, involving approximately six to eight officers. Although the deal was set for 8:00 p.m., Hultgren did not arrive until approximately 9:30 p.m. with appellant Rondinelli, who was hitherto unknown to the DEA agents. The DEA agents monitored the conversation between Foster, Hellums, Hultgren, and Rondinelli relating to

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prices, quantities, setting up the scales, and future transactions.

Then, the transmitter being carried by Foster ceased broadcasting, for reasons unknown. Only static could be heard by the monitors. Whitworth alerted the other agents to prepare to enter the house, and minutes later, entrance was expediently accomplished. The agents entered the house by knocking and announcing their presence and then breaking down the front door when they saw or heard the people trying to escape. Hellums, Hultgren, and Rondinelli were apprehended as they attempted to leave the house through the back door. While searching the house for other persons, the agents discovered in the bedroom a set of triple beam scales, a small plastic bag containing a white powdery substance, and a "baggie" of marijuana.

Hultgren, Hellums and Rondinelli were charged with conspiracy to possess cocaine with intent to distribute during a period from February 25 to March 2, 1982. Hellums was charged with conspiracy to possess with intent to distribute during the period from February 1 to February 2, 1982 and with possession of cocaine on February 2, 1982. Rondinelli, Hultgren and Hellums were also charged with possession of cocaine on March 2, 1982. All three appellants moved to suppress the evidence seized at the time of their warrantless arrests at Hellums' residence on March 2, 1982. The district court held the suppression hearing on May 20, 1982, and denied the motions to suppress.

Appellants waived the right to trial by jury. By agreement between the government and appellants, the case was tried before the court on stipulated facts and evidence and the testimony heard at the suppression hearing. The court found Hellums guilty of conspiracy to possess cocaine with intent to distribute on February 1 through 2, 1982. It found Hultgren and Rondinelli guilty of conspiracy to possess with intent to distribute from February 25 to March 2, 1982. The other charges against appellants were dismissed. Each appellant was then sentenced to a term of five years with eligibility for parole pursuant to 18 U.S.C. § 4205(b)(2). Each appellant filed a timely notice of appeal.

II. Warrantless Arrest and Search

A warrant to search or arrest was not issued at any time, nor was there an application for one. The district court concluded that probable cause for the issuance of a search warrant for the cocaine was not established until 6:20 p.m. on March 2, 1982, when the sample was delivered to Foster. 2 Similarly, probable cause for the issuance of an arrest warrant on the possession charge, Count 4 of the indictment, did not arise at least until 6:20 p.m. on March 2. 3 The district court concluded, however, that

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probable cause for the conspiracy charge in Count 2 of the indictment 4 arose by midnight on March 1, 1982. 5

The parties to this appeal do not take issue with the district court's findings of probable cause. Rather, appellants Rondinelli and Hultgren contend that their warrantless arrest and search in the private home of a third person, Hellums, was impermissible since the government failed to obtain or even to seek a warrant when probable cause for an offense had earlier arisen. 6 They argue that the district court

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erred in finding that "exigent circumstances" justified the warrantless arrest and search, and therefore their motions for suppression should have been granted. 7

The Supreme Court has had frequent occasion to address the narrow circumstances under which a warrantless arrest or search of one's own home may be proper. In such cases, the Supreme Court has observed that in the absence of consent:

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). See Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981); Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042-43, 29 L.Ed.2d 564 (1971); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). The purpose behind the warrant requirement, to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search, is the same whether the home entered is one's own or that of another. However, the interests underlying the warrant requirement leading to the sharp line-drawing at the threshold of the home, are less compelling in the case where the home of another is intruded upon. While in either case the individual interest in protecting his own liberty is identical, the interest in privacy against unwarranted intrusion is less compelling if the person complaining is not the owner. Thus, in the immediate case, where a warrantless arrest and search takes place in the home of a third person, we recognize that the presumption of its invalidity is not strong as it would be had the intrusion been into the complaining party's own home. 8

At the suppression hearing, the government advanced five factors as showing the existence of exigent circumstances: (1) the lack of sufficient time to prepare an affidavit, locate a magistrate, and obtain a warrant after probable cause arose; (2) the danger to the government informant when the transmitter failed and the conversation could not be monitored; (3) the imminent danger of destruction of evidence; (4) the possibility that persons might escape; and (5) the necessity of having adequate time to brief the informant after probable cause arose. In its rulings on the motion to suppress, the district court found that exigent

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circumstances justified the warrantless arrests of Rondinelli and Hultgren. We agree.

  1. Rondinelli

    As to Rondinelli, the existence of exigent circumstances is apparent. Rondinelli's participation in the illicit activities were unknown until he arrived with Hultgren at 9:35 p.m. on the evening of March 2; the DEA agents had not previously learned of his participation during the course of their ongoing investigation. Accordingly, as pointed out by the district court, probable cause for Rondinelli's arrest did not arise until his arrival at 9:35 p.m. By that hour, amidst the agents' surveillance and monitoring of the cocaine...

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