U.S. v. Burgos
| Decision Date | 12 December 1983 |
| Docket Number | No. 82-5035,82-5035 |
| Citation | 720 F.2d 1520 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Noe BURGOS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
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.
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.
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 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 both parties identified each other. Prior to trial the government and Mr. Burgos stipulated that Mr. Burgos had purchased and taken possession of two boxes of firearms from Mr. Kasha and that neither one of them possessed the required firearms license.
The appellant challenged the admission of the physical evidence on three separate grounds: (1) the circumstances surrounding the initial encounter constituted an unlawful arrest because it was not based upon probable cause; (2) the initial encounter between Agent Kimbler and the defendant was a custodial detention which would mandate Miranda warnings; and (3) the warrantless seizure of the guns in appellant's home was a violation of his fourth amendment rights. The district court rejected all these arguments and found that the initial encounter between Agent Kimbler and the appellant was merely a contact, and not a custodial detention, thus not requiring either probable cause or Miranda warnings. The district court further found that there was no violation of appellant's fourth amendment rights because the appellant consented to the entry by the agents into his home.
In order to determine whether appellant's fourth and fifth amendment rights were violated at the initial confrontation, we must determine if the encounter between Agent Kimbler and the appellant was the type of police-citizen encounter which would invoke the fourth and fifth amendment safeguards. This circuit, in United States v. Berry, 670 F.2d 583 (5th Cir.1982) (Unit B en banc ), specifically identified three types of police citizen encounters: "communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief 'seizures' that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause." Id. at 591.
In Berry we held that a stop was a seizure if "in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." Id. at 591 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). Although there was some contradiction as to the facts of the encounter Agent Kimbler and Mr. Burgos agreed that Mr. Burgos was not free to leave. During the hearing on the motion to suppress Agent Kimbler testified on cross-examination that Mr. Burgos "would not have been able to leave until he answered the question." Record, Vol. II, p. 118. Mr. Burgos also testified that he did not believe he would have been allowed to leave had he asked for permission to leave. Record, Vol. II, p. 231. Given these circumstances, we conclude that a reasonable person would no longer have thought he was free to leave and the encounter thus constituted a seizure under the standards of Berry.
Once a stop has been held to be a seizure, it can be constitutional only if based upon reasonable suspicion. United States v. Berry, 670 F.2d at 591. The Supreme Court has defined reasonable suspicion as "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). At the time of the stop, Agent Kimbler had information that Mr. Kasha had been purchasing large quantities of firearms, without the proper license, for seven months. Mr. Kasha, again without the proper license, transferred these firearms to Mr. Burgos. The surveillance team had watched the purchase, the transfer and the unloading of the guns into Mr. Burgos' home. It is apparent that Mr. Burgos was also not qualified to purchase these firearms directly from the gun shops. Reasonable suspicion thus supported this seizure. 4
Having concluded that there was no violation of appellant's ...
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