720 F.2d 1520 (11th Cir. 1983), 82-5035, United States v. Burgos

Docket Nº:82-5035.
Citation:720 F.2d 1520
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Noe BURGOS, Defendant-Appellant.
Case Date:December 12, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1520

720 F.2d 1520 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Noe BURGOS, Defendant-Appellant.

No. 82-5035.

United States Court of Appeals, Eleventh Circuit

December 12, 1983

Page 1521

Michael Blacker, Coconut Grove, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Michael Hursey, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and ATKINS [*], District Judge.

Page 1522

FAY, Circuit Judge:

Appellant, Noe Burgos, appeals his conviction by the United States District Court for the Southern District of Florida on charges of conspiracy to violate federal firearms law by dealing in firearms without a license in violation of 18 U.S.C. Sec. 371 (1966). Prior to trial, Mr. Burgos moved to suppress all of the firearms seized at his home on the basis that they had been seized by Special Agent Donald Kimbler in violation of his fourth amendment rights. After a hearing on the motion to suppress, the district court denied the motion. Mr. Burgos then waived jury trial and was tried and found guilty on stipulated facts and evidence. This court finds that the case agent had probable cause to arrest Mr. Burgos. Furthermore, reasonable grounds existed for searching appellant's residence and exigent circumstances justified the warrantless search, therefore, we affirm the district court's denial of appellant's motion to suppress. 1

The issue on appeal is whether the district court erred in denying the motion to suppress. This presents two important questions for this court to decide: (1) whether the initial encounter between Agent Kimbler and Burgos was merely a police-citizen contact falling outside the scope of the fourth amendment or whether it was an arrest requiring probable cause and Miranda 2 warnings; (2) whether there was probable cause and exigent circumstances justifying the warrantless search of Burgos' residence.

I. FACTUAL BACKGROUND

Sometime in July, 1978, Special Agent Kimbler of the Bureau of Alcohol, Tobacco and Firearms received word from a confidential informant that a man, named Kenneth Kasha, was purchasing firearms often at the Tamiami Gun Shop in Miami. Agent Kimbler went to the gun shop, checked its records and confirmed that Kenneth Kasha had purchased approximately one hundred ninety-two firearms from Tamiami Gun Shop between December, 1977, and July 17, 1978. The Gun Shop's records also indicated that Mr. Kasha was using a Type 3 federal firearms license, which can be used only by collectors of curios and relic-type guns. Mr. Kasha had been purchasing guns from the gun shop during this period of time that were not the type of firearms included within the definition of curios and relics under the Gun Control Act of 1968. The dealer at the gun shop told Agent Kimbler that he believed that Mr. Kasha would be returning soon to purchase more guns.

Shortly thereafter, at Agent Kimbler's request, the gun dealer notified him that Mr. Kasha would be returning to the shop to pick up another purchase. Based on this information Agent Kimbler organized a surveillance team and returned to the gun shop on July 27, 1978, the date on which Mr. Kasha was expected to return to pick up his new firearms purchase.

Agent Kimbler arrived at the Tamiami Gun Shop early and found the gun dealer packing firearms for Mr. Kasha into large boxes. Agent Kimbler requested that the dealer use special shiny, tan tape on Mr. Kasha's boxes which would make the boxes readily identifiable to the surveillance team from a distance. The gun dealer agreed to do this.

Agent Kimbler was still in the shop when Mr. Kasha arrived. He left immediately and joined the surveillance team outside, at a spot from which all agents could see the gun shop clearly. Agent Kimbler soon observed Mr. Kasha leaving the gun shop carrying the bound cardboard box with the identifiable tape. Mr. Kasha placed the box on the back seat of his black 1975 Cadillac and, with Agent Kimbler following him, drove to another gun shop, where he purchased additional firearms. Once more, he

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placed this second box of firearms on the back seat of his car.

After leaving this gun shop Agent Kimbler and the surveillance team followed Mr. Kasha to his apartment. They waited outside for about forty minutes and then observed appellant come out of the apartment with Mr. Kasha and both men transfer the two boxes from Mr. Kasha's car to appellant's car's trunk.

Mr. Burgos drove to his residence with the surveillance team following him. He backed his car right up to the porch of the house and, together with another male who had been in the house, took the two large boxes, containing forty-five guns, out of his car trunk and into the house.

As appellant was exiting the house, leaving the front door partially open, Agent Kimbler arrived. While the evidence is anything but clear as to the details, there is no question that several law enforcement vehicles arrived at about the same time. Numerous officers were in the immediate area. One or more units may have actually driven up in the front yard area of the home. Agent Kimbler confronted appellant on the porch area with at least one other officer. When Agent Kimbler identified himself as a federal officer and displayed his badge, he immediately advised appellant that he wanted to speak to him about the firearms. It was clear to all present that Burgos was not free to go anywhere. 3 Appellant did gesture with his arm for Agent Kimbler and two other agents who were then on the porch to go into the house.

As the agents stepped into the house, they immediately saw the two boxes previously picked up at the gun shops, standing next to an open refrigerator. All around and inside the refrigerator the agents could see blue Smith & Wesson gun boxes with diapers around them. At this point, one of the agents read the appellant his rights in Spanish and he was arrested.

Agent Kimbler then went to Mr. Kasha's apartment, read him his rights, and arrested him. Mr. Kasha accompanied Agent Kimbler to Mr. Burgos' home where...

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