799 F.2d 1271 (9th Cir. 1986), 83-5295, United States v. Echegoyen

Docket Nº:83-5295.
Citation:799 F.2d 1271
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo ECHEGOYEN, Defendant-Appellant.
Case Date:September 12, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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799 F.2d 1271 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,


Rodolfo ECHEGOYEN, Defendant-Appellant.

No. 83-5295.

United States Court of Appeals, Ninth Circuit

September 12, 1986

Argued and Submitted June 5, 1986.

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Ralph C. Hofer, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Robert Allen, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON and HALL, Circuit Judges, and ORRICK, [*] District Judge.

PREGERSON, Circuit Judge.


Rudolfo Echegoyen initially pled not guilty to an indictment charging him and various others with several counts of federal narcotics law violations. Echegoyen filed pretrial motions to suppress certain evidence seized by law enforcement officials in two separate searches. The district court denied these motions. Thereafter, Echegoyen entered a conditional plea of guilty to three of the counts in the indictment. From this conditional plea of guilty, Echegoyen appeals the district court's denial of his motions to suppress. We affirm.


The issues surrounding this appeal relate to two searches conducted at a residence in Idyllwild, California and to a later search conducted on a forty-acre ranch in Nipomo, California.

Searches of the Idyllwild Home

On May 21, 1982, Riverside County sheriffs made a warrantless entry and search of a residence located on Tahquitz Road in Idyllwild, California. 1 The appellant, his brother, Jaime Echegoyen, and a third man, Fred Stegman, were in the house and were arrested at that time. In addition, equipment and chemicals used in processing cocaine and a quantity of cocaine were also seized. The facts surrounding the search are detailed below.

At approximately 12:30 a.m. on May 21, 1983, Jim Jacobson, a resident of Tahquitz Road, was awakened by what he thought to be the odor of a chemical. Jacobson noticed that the odor was coming from the outside air. He then notified the Riverside County Sheriff's Office, and two officers responded to the call. These officers met Jacobson on Tahquitz Road, approximately one-eighth of a mile from Jacobson's house. Jacobson and the officers walked back up

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the road to Jacobson's house. While walking back to the house, one of the detectives recognized the smell as that of ether.

The officers determined that the smell was emanating from the residence located at 25050 Tahquitz Road. The deputies suspected that this house, in addition to being a fire hazard, was also the scene of illicit narcotics activity. With this in mind, the officers called a back-up deputy and the local fire department to the scene. The firefighter who arrived believed that the flammable ether posed a serious fire hazard and that immediate action was necessary.

Thereafter, the deputies, without the aid of the firefighter, approached the house and entered through the open sliding glass doors. Rodolfo Echegoyen and Fred Stegman were arrested as they attempted to flee from the residence. A third person, Jaime Echegoyen, was found sleeping in one of the bedrooms, and he was also arrested. The deputies then searched a truck and guesthouse on the property for other suspects. No other suspects were found, but chemicals were seen in the rear of the truck.

After the suspects were in custody, the deputies, joined by the firefighter, re-entered the cabin to eliminate the fire hazard. They turned off the gas burners on the kitchen stove, opened the windows for ventilation, and inspected the residence for any other open flames. While conducting this inspection, the deputies saw drug processing equipment and chemicals, and a quantity of white powder, later identified as cocaine. They also detected the smell of ether and acetone.

The deputies and the firefighter then left the residence and placed a call to the Riverside Sheriff's Office, requesting that narcotics agents join them to take over the investigation. The officers then waited outside for the narcotics agents to arrive.

Two narcotics agents arrived and entered the residence. Based on what they saw and what was told to them by the other detectives, the narcotics agents left the area to obtain a search warrant. The agents returned, executed the warrant, and seized the chemicals, equipment, and cocaine. Prior to that time, nothing had been removed from the residence.

Defendants Rodolfo and Jaime Echegoyen filed a motion to suppress the evidence seized from this residence. On November 14, 1983, the district court denied the motion. The district court held, inter alia, that (1) exigent circumstances existed for the warrantless entry and search of the residence; (2) the later entry by the narcotics officers was a lawful, limited entry done for the purposes of avoiding a possible explosion; (3) a search warrant would have inevitably been issued for this search; and (4) the search warrant that was issued stated probable cause without regard to information derived from the second entry by the narcotics agents. The district court also stated that the defendants' standing to assert these motions would be "assumed" by the court. Following the denial of the motion, Rudolfo Echegoyen entered a conditional plea of guilty under Fed.R.Crim.P. 11(a)(2), and was convicted.

The Search of the Nipomo Ranch

On March 16, 1983, the California State Police executed a search warrant for a forty-acre ranch in Nipomo, San Luis Obispo County, California. The property searched belonged to Raymond Alexander. Upon entering the property, the officers found equipment and chemicals customarily used to operate a cocaine processing facility and seventy pounds of cocaine. The officers also arrested Rudolfo Echegoyen, Raymond Alexander, Helmur Vizcarre, Jaime Echegoyen and Luis Pino-Solari, all of whom were present at the search. These defendants were subsequently indicted for various narcotics law violations.

Following his arrest at Nipomo, Echegoyen entered an initial plea of not guilty. He and his codefendants arrested at the ranch also filed a pretrial motion to suppress all the evidence seized at the ranch. In the papers supporting the motion, it was contended, inter alia, that the affidavit

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supporting the search warrant was insufficient to establish probable cause. 2

On November 7, 1983, the district court denied the motion to suppress, holding that the affidavit contained "sufficient reliable information to sustain the state court's issuance of the warrant."

Following the denial of this motion, the defendant entered a conditional plea of guilty under Fed.R.Crim.P. 11(a)(2), and was convicted.


A. The Conditional Guilty Pleas

In addition to attacking the merits of the defendant's appeal, the government raises a procedural matter which it claims precludes Echegoyen from raising on this appeal any issues surrounding the search of the Nipomo Ranch. The government contends that the defendant, in entering his conditional guilty plea, reserved his right to appeal only those issues arising from the search of the residence in Idyllwild. The government notes that, under the Federal Rules of Criminal Procedure governing conditional pleas of guilty, the defendant must "reserv[e] in writing the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion." Fed.R.Crim.P. 11(a)(2). The government points out that Echegoyen, in filing his "Reservation of Issue on Appeal pursuant to Rule 11(a)(2), Fed.R.Crim.P." reserved his right to appeal only from the judgment and conviction on Count Six. The only adverse determination relating to Count Six involves the denial of the motion to suppress evidence seized from the Idyllwild residence. The government argues, therefore, that the defendant can only appeal this ruling and cannot appeal any issues relating to the search of the Nipomo Ranch which related only to Count Seven.

Echegoyen concedes that his written notice of appeal only reserves the right to appeal as to Count Six. However, he argues that an examination of the transcript of the hearing at which he entered his guilty plea reveals that the court, the government, and the defendant all understood that the guilty pleas entered as to Counts Three, Six, and Seven were conditional upon the defendant's right to appeal adverse rulings relating to all these counts. Echegoyen asserts that this understanding among all the parties satisfies when he asserts the policy behind Rule 11(a)(2) that the court and the government acquiesce in the entry of a conditional plea.

Recent precedent from this circuit dictates that Echegoyen's failure to reserve in writing his right to appeal any adverse rulings relating to Count Seven precludes him from challenging the legality of the entry and search of the Nipomo Ranch.

In United States v. Alexander, 761 F.2d 1294 (9th Cir.1985), the owner of the Nipomo Ranch, codefendant Raymond Alexander, also contested the validity of the Nipomo Ranch search. Alexander had also entered a conditional plea of guilty under Fed.R.Crim.P. 11(a)(2). Id. at 1303. Although the plea agreement did not reserve any issues in writing, the parties did enter into a stipulation as to the issues that would be appealed. Id. at 1303. The defendant, however, sought to raise three issues on appeal that were not reserved in the stipulated plea agreement. Id. In Alexander we held that "the[se] three issues ... were not included in the plea bargain, and we decline to rule on them." Id.

A more detailed discussion of Fed.R.Crim.P. 11(a)(2)'s requirement that the conditional guilty plea agreement reserve appellate review only of specified pretrial motions is found in our recent case of United States v. Carrasco, 786 F.2d 1452 (9th Cir.1986).

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In Carrasco, the government offered a plea agreement wherein the defendant...

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