U.S. v. Hicks, 83-5234
| Decision Date | 25 April 1985 |
| Docket Number | No. 83-5234,83-5234 |
| Citation | 752 F.2d 379 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Victoria HICKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Darrell W. MacIntyre, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Albert A. Newton, Santa Ana, Cal., for defendant-appellant.
Appeal from the United States District Court for the Central District of California.
Before FARRIS, and ALARCON, Circuit Judges, and PRICE, * District Judge.
Victoria Helena Hicks (Hicks) seeks reversal of her conviction for conspiracy to distribute a controlled substance.
Hicks contends that the district court erred in denying her motion to suppress. She raises three issues on this appeal.
One. The entry of her dwelling house without a warrant, was not justified by exigent circumstances.
Two. The officers seized her residence without her consent prior to obtaining a search warrant.
Three. The evidence seized pursuant to the search warrant was tainted by the prior illegal entry.
A. Factual Background
Hicks and her daughter, Cristina Hicks (Cristina), resided at 7121 Rutgers Avenue, Westminster, California, during May of 1983.
On May 13, 1983, a reliable confidential informant to the FBI and the Drug Enforcement Administration (DEA) told D. Lynn Wood (Wood), a special agent of the DEA, that Cristina and Carlos Javier Marulanda (Marulanda) had advised him that they could supply kilogram quantities of cocaine from a "stash" house in San Francisco.
On May 14, 1983, Cristina and Marulanda told the informant that they were going to San Francisco to obtain some cocaine.
On May 15, 1983, Cristina rented a Dodge automobile bearing California license number 1GGG609 from a Hertz Rent-A-Car office in San Francisco. In renting the car, Cristina used her driver's license as identification. The driver's license showed that she resided at 7121 Rutgers, Westminster, California.
On May 16, Cristina told the informant that the cocaine was in Los Angeles. On the same date, Cristina and Marulanda met the informant in a motel in Stanton, California. There, the informant was shown a suitcase which contained five packages. One package was opened. It contained a white crystalline substance which appeared to be cocaine. Cristina told the informant that they had 11 kilograms of cocaine with them in the Los Angeles area. Cristina informed the informant he could contact her by telephone by dialing 714-895-2874. Telephone records show this number was subscribed to by Victoria Hicks of 7121 Rutgers, Westminster, California.
The informant observed Cristina and Marulanda in a vehicle with license number 1GGG609.
On May 18 and May 19, the informant told Wood that Cristina and Marulanda were going to deliver ten kilograms of cocaine to him on May 19, 1983, in the parking lot located at 16160 Huntington Beach Boulevard, Huntington Beach, California.
At 1:20 p.m., on May 19, 1983, FBI agents observed a Dodge automobile, bearing California license 1GGG609 in front of the residence at 7121 Rutgers, Westminster, California. At 5:45 p.m., a Volkswagen arrived at the residence. The Volkswagen was driven away at ten minutes to six. One of the FBI agents followed the Volkswagen but lost it in traffic. At 6:10 p.m., Cristina drove away from her residence in a 1982 Toyota. Simultaneously, Marulanda drove off in the Dodge rented by Cristina.
Cristina and Marulanda arrived at the parking lot at 6:35 p.m. They showed Wood and the informant a suitcase containing ten bags of a substance which appeared to be cocaine. Marulanda stated that the cocaine in the suitcase was all he had. Cristina and Marulanda were arrested in the parking lot.
FBI Agent Robert Montoya (Montoya) and Special Agent John M. Valestra (Valestra) of the DEA observed the arrest of Cristina and Marulanda. Prior to May 19, 1983, Montoya had participated in approximately 250 narcotics-related investigations. Based on his experience in narcotics investigations and conversations with other investigators, he was aware that narcotics traffickers dealing in large quantities have confederates arrive at the site of a narcotics transaction to try to stop the transaction if law enforcement officers are in the area, or to tip off the source of supply, if the persons who make the delivery are arrested.
Prior to Cristina's arrest, Montoya and Valestra were advised, through a radio communication from other agents who were on surveillance duty at the Hicks residence, that a Volkswagen had left the area at approximately 5:45 p.m. The information concerning the Volkswagen caused Montoya to believe that there might be counter surveillance at the parking lot. Valestra's 13 years of experience in narcotics investigations caused him to believe that others were involved in the narcotics transaction in addition to Cristina and Marulanda.
Shortly after the arrest, the officers became aware that the Hicks residence was not under surveillance. Montoya and Valestra were directed to go to the Hicks residence ahead of the other units.
Earlier that day, Montoya attended a briefing session with other special agents from the DEA and the FBI. At that meeting, FBI Agent D. Brent Robbins (Robbins) informed Montoya and Valestra that Hicks and Marulanda had brought 11 kilos into the Los Angeles area. Because Montoya and Valestra had seen only ten kilos of cocaine in the trunk of Cristina's rented car, they believed that it was possible that additional quantities of cocaine were present in the Hicks residence. As Montoya and Valestra approached the Hicks residence, they observed Hicks and a small child walking hurriedly towards a vehicle. The officers pulled into the driveway, alighted from their vehicle and approached Hicks. Valestra testified that at this moment the situation was "stressful" because he did not know if someone was in the house pointing something at him. Because of the report of the Volkswagen, and the possibility of counter surveillance, Valestra also believed that someone might be in the house.
The officers told Hicks that they were federal agents and that her daughter had been arrested for selling ten kilos of cocaine.
Hicks advised the officers that her 15 year old son was alone in the house. Valestra knocked on the door and the window. The door was opened by George, Hicks' son. Valestra entered and quickly "took a fast-paced walk through the house beginning to [his] left looking in rooms for confederates or possible contraband that may have had a chance to be destroyed." Nothing was seized during this cursory search. Meanwhile, Hicks was escorted into the house by Montoya, after stating to him
After the protective sweep of the house for additional persons was completed, Hicks was told that a warrant was going to be obtained in order to search her residence. She was further advised that the agents could either stay inside with her, or wait outside until the warrant was obtained, "depending on what she wanted to do." Hicks advised the officers not to go outside because she did not want the neighbors to know what was happening. While the officers waited for the warrant, she made coffee and served refreshments. The "atmosphere" in the Hicks residence was friendly and calm until the warrant was executed at 1:55 a.m.
During the search conducted pursuant to the warrant, a kilo of cocaine was discovered in Cristina's room, as well as other evidence that connected Hicks to illicit drug trafficking. Hicks was thereafter arrested, tried, and convicted of one count of conspiracy to distribute a controlled substance.
In reviewing a district court's determination that exigent circumstances justified the entry of a residence without a warrant, appellate judges must engage in a three step analysis. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.1984) (en banc).
First. The trial judge's findings that certain facts occurred, the weight accorded to the evidence and the credibility of witnesses are reviewed under the deferential, clearly erroneous standard. Id. The clearly erroneous standard of review of the facts relieves appellate courts of "the burden of a full scale independent review and evaluation of the evidence." Id. at 1201.
Second. The selection by the trial court of the applicable law is reviewed de novo. Id. at 1201.
Third. The application of the law to the facts as established by the district court is subject to de novo review. Id. at 1202.
In United States v. Salvador, 740 F.2d 752 (9th Cir. 1984), we set forth the test for the application of the exigent circumstances exception to the requirement of a search warrant for a...
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