768 F.3d 94 (2nd Cir. 2014), 13-3329-cr, United States v. Andino
|Citation:||768 F.3d 94|
|Opinion Judge:||DRONEY, Circuit Judge :|
|Party Name:||UNITED STATES, Appellant, v. YVETTE L. ANDINO, Defendant-Appellee, THURMAN ARTIS, AKA PEEPERS, ANDERSON MONTANEZ, Defendants|
|Attorney:||MARY CATHERINE BAUMGARTEN, Assistant United States Attorney (Stephan J. Baczynski, Assistant United States Attorney, of counsel), for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellant United States. JOHN P. PIERI, Buffalo, NY, for Defe...|
|Judge Panel:||Before: CABRANES, CARNEY, and DRONEY, Circuit Judges.|
|Case Date:||September 16, 2014|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued June 25, 2014
Appeal from the United States District Court for the Western District of New York. No. 12-CR-13 -- William M. Skretny, Chief Judge.
The Government appeals from an order of the U.S. District Court for the Western District of New York (William M. Skretny, Chief Judge) granting defendant Yvette Andino's motion to suppress cocaine seized by law enforcement officers after a warrantless entry into her home. The district court adopted a report and recommendation (Jeremiah J. McCarthy, Magistrate Judge), which held that the seizure was unlawful because the exigent circumstances that justified the officers' initial entry had ended before they discovered the cocaine.
We hold that the district court erred in determining that exigent circumstances did not continue to exist at the time of the discovery of the cocaine. Accordingly, we REVERSE the portion of the order of the district court granting Andino's motion to suppress and REMAND.
Defendant-Appellee Yvette Andino was indicted in the Western District of New York for possession with intent to distribute cocaine and related charges after law enforcement officers conducted a warrantless entry into her home and seized cocaine from her kitchen. The U.S. District Court for the Western District of New York (Skretny, C.J.) issued an order suppressing the evidence, adopting Magistrate Judge Jeremiah J. McCarthy's Report & Recommendation (" R& R" ). The magistrate judge concluded that exigent circumstances justified the officers' initial warrantless entry into Andino's home, but those circumstances ended when the officers obtained physical control over Andino. Therefore, the R& R concluded, the subsequent search and seizure of cocaine was unlawful.
On appeal, the Government contends that a plastic baggie containing cocaine
found in Andino's kitchen sink was improperly suppressed because exigent circumstances -- the imminent destruction of that evidence -- continued to exist even after Andino was secured in her living room. While we agree with the district court that exigent circumstances justified the warrantless entry into Andino's home, we conclude that the district court erred in determining that exigent circumstances did not also justify the officers' warrantless entry into her kitchen. Accordingly, we REVERSE the portion of the order of the district court that suppressed the evidence seized from the kitchen and REMAND.
I. Factual Background
The following is taken from the district court's decision adopting the magistrate judge's findings of fact based on an evidentiary hearing on the motion to suppress.
At approximately 8 p.m. on August 29, 2011, officers and agents assigned to the U.S. Drug Enforcement Administration (" DEA" ) Task Force in Buffalo, New York, arrested Anderson Montanez and Thurman Artis. Montanez was defendant-appellee Andino's boyfriend; they lived together in a house on Norfolk Avenue in Buffalo with their two children.
Montanez and Artis were arrested for their involvement in a series of controlled sales of cocaine to an informant cooperating with the Task Force. Montanez and Artis had traveled together to several locations to pick up cocaine and then traveled back to the area near the Norfolk Avenue home to conclude the sales. At the time of Montanez's arrest, police recovered cocaine from his pocket.
After his arrest, Montanez was brought to the DEA office and questioned by DEA agents. He told the agents that he had " a couple" of ounces of cocaine inside of a book bag at his house on Norfolk Avenue. Montanez said he was concerned about Andino being arrested and the agents explained that " [they] would like to just go to the house, retrieve the cocaine[,] and that would be it." J.A. 58. Montanez provided the officers a written consent to search the residence and told them Andino would know where the cocaine was located.
At approximately 11 p.m., a team consisting of federal and local law enforcement personnel wearing DEA vests and windbreakers arrived at Andino's house. Some of the officers, including DEA Special Agent Brian Chella, approached the front door of the house. Other officers went to the side of the house where there was a side entrance, driveway, and a window. Task Force Officer Kerry Jones stood by the side window, while DEA Special Agent David Leary was by the side door.
After agents knocked and rang the doorbell, Andino opened the inner door at the front entry. At that point Agent Chella identified himself, and informed Andino that Montanez had been arrested by the DEA, had told the agents there was cocaine in the house, and had given consent to search the house and seize the cocaine. Andino asked to see a copy of the consent to search form, but as another officer held it up to show her she slammed the door shut. Agent Chella heard Andino running away from the door. Officer Jones then heard a faucet begin to run in the kitchen and drawers being opened and closed, prompting him to yell to the other officers that " drugs or evidence" was being destroyed. J.A. 123. Agent Chella then made his way to the side of the house where he " also heard the kitchen sink." J.A. 62.
Believing that Andino was in the process of destroying the cocaine, officers attempted to open the side and front doors, but
were unable to do so. Agent Chella entered the home by removing a window air conditioning unit in the first floor living room and entering through the window. He saw two children sleeping on a couch. Andino then emerged from the kitchen and entered the living room. Agent Chella directed her to open the front door to allow the rest of the search team to enter, which she did.
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