809 F.2d 671 (10th Cir. 1987), 85-2322, United States v. Mabry

Docket Nº:85-2322, 85-2347 and 85-2377.
Citation:809 F.2d 671
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John MABRY, Debra Mabry, and Roger Sanders, Defendants-Appellants.
Case Date:January 20, 1987
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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809 F.2d 671 (10th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

John MABRY, Debra Mabry, and Roger Sanders, Defendants-Appellants.

Nos. 85-2322, 85-2347 and 85-2377.

United States Court of Appeals, Tenth Circuit

January 20, 1987

Rehearing Denied March 3, 1987 in Nos. 85-2322 and 85-2347.

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Presiliano A. Torrez (William L. Lutz, U.S. Atty., and Robert J. Gorence, with him on briefs), Asst. U.S. Attys., Albuquerque, N.M., for plaintiff-appellee.

Thomas C. Reeve (George B. Curtis, with him on briefs), of Gibson, Dunn & Crutcher, Denver, Colo., for defendants-appellants John Mabry and Debra Mabry.

Billy R. Blackburn, Albuquerque, N.M., for defendant-appellant Roger Sanders.

Before BARRETT, McKAY and TACHA, Circuit Judges.

BARRETT, Circuit Judge.

John Mabry, his wife, Debra Mabry, and Roger Sanders were jointly tried by jury and convicted of drug related charges. Sentences were entered on September 3, 1985. Each was charged by indictment and found guilty following a five day trial on various counts of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, possession with intent to distribute cocaine and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B), and aiding and abetting in violation of 18 U.S.C. Sec. 2. Roger Sanders was charged and convicted of illegal use of a communication facility to facilitate an unlawful cocaine transaction in violation of 21 U.S.C. Sec. 843(b) and (c).

The crucial issues in this case involve the validity of a warrantless entry of a residence, the short "protective sweep" of the house and garage, and the search warrant subsequently obtained.

FACTS

During the early spring of 1985, the narcotics division of the Albuquerque, New Mexico, Police Department, joined by some state police agents, was pursuing undercover drug investigations designed to arrest the suppliers and sellers of illicit drugs and to confiscate the contraband. This operation was known as "Operation Panama." The operation consisted of several police officers working in undercover capacities, a substantial number of informants and surveillance police officers. (R., Vol. V, pp. 586-89.) The primary purpose of the operation was to seek out people dealing in drugs and arrest them. Id. at 589. To this end, Detective Carlos Gonzales (Gonzales) of the Albuquerque Police Department, in his undercover capacity of a cocaine user/purchaser known as Nathan, met appellant Roger Sanders (Sanders), who sold him cocaine. The initial meeting of Gonzales and Sanders took place at an undercover apartment in Albuquerque, where Gonzales purchased one-quarter pound of cocaine from Sanders. The transaction was videotaped. Sanders informed Gonzales that the source of his cocaine was an individual in the Albuquerque area who had a lot of money and who could provide any quantity of high quality cocaine. Gonzales had many subsequent contacts with Sanders, including additional cocaine sale/purchase transactions. During these contacts, Sanders related that his source traveled frequently to Europe.

On March 28, 1985, Gonzales purchased about one ounce of cocaine from Sanders in exchange for $2,100 when they met at Molly's Bar in Tijeras Canyon, about twenty miles from Albuquerque. Gonzales and Sanders discussed Gonzales' wish to purchase one-half pound of cocaine, how the delivery was to be made and how the purchase money was to be transferred. Sanders again stated that he would make contact with his "source" or supplier in Tijeras.

On April 4, 1985, Gonzales and Sanders met at Carrow's Restaurant in Albuquerque where they again discussed the one-half pound cocaine transaction. Sanders, indicating that he needed to speak with his "source," used a pay telephone in the restaurant. Gonzales, who was standing nearby, observed the number Sanders dialed, made a mental note of it, and about noon that day requested that officers in the intelligence division of the department ascertain the name of the telephone subscriber and the address of the number. Officers pursued this request and by 2:00 p.m. had obtained information from Mountain Bell telephone company that the number was

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registered to John Mabry, who resided at a particular post office box address in Tijeras Canyon. Two detectives went to Tijeras Canyon that afternoon and photographed the Mabry residence. The photograph was made available to the narcotics division detectives that evening at about 6:00 p.m.

After the meeting at Carrow's Restaurant, Gonzales and another undercover detective, Medrano, met with Sanders at Molly's Bar in Tijeras. Sanders asked them to remain there while he went to arrange the two ounce cocaine transaction with his source. It had been agreed that the purchase price was $16,800. When Sanders returned, it was agreed that the three would meet that evening at 9:00 p.m. at a particular parking lot in the Tijeras Canyon area. At about 7:00 p.m. the evening of April 4, 1985, some ten law enforcement detectives, members of the narcotics division of the Albuquerque Police Department, met at police headquarters to plan their stake-out and surveillance strategy. Detective Gonzales attended and was very much involved in planning the evening contact with Sanders, the stakeouts and surveillance of Sanders. When asked why he did not obtain a search warrant for the Mabry residence before he purchased the two ounces of cocaine from Sanders late the evening of April 4, 1985, Detective Gonzales stated, "I didn't have any probable cause, I didn't know who the connection was or where the house was at." (R., Vol. III, p. 72.) Mr. Gonzales testified that dealers such as Sanders do not want to disclose the location of their sources (suppliers). (R., Vol. V, p. 559.)

Detectives Gonzales and Medrano, in their undercover roles, met Sanders at the designated parking lot in Tijeras about 9:00 p.m. They agreed to follow Sanders to the home of his source. While en route, the detectives lost contact with Sanders' vehicle and returned to the parking lot. When Sanders returned, there was considerable discussion as to how delivery of the half pound of cocaine would be made. The purchase price had been agreed at $16,800 and Gonzales had $8,400 with him. (R., Vol. III, pp. 12, 13.) This money was part of a total sum of $50,000 made available to the Albuquerque Police Department by the City of Albuquerque to investigate drug transactions under a program designated as "Operation Panama."

Upon his return, Sanders informed the officers that his "source" for the cocaine wanted the entire $16,800 fronted, i.e., paid to him prior to delivery of the cocaine to Sanders and that Gonzales and Medrano must wait at the parking lot while Sanders went to get the cocaine. Id. at 13, 14. The officers refused to "front" the entire purchase price. After several more meetings--there were four in all--Officer Gonzales handed Sanders $4,200. Sanders was to obtain two ounces of cocaine from his source, return with it to a Chevron gasoline station in Tijeras Canyon, and receive the balance of $12,600 after the officers examined the contents of the two ounces of cocaine and were satisfied with it. Id. at 16, 17.

During these trips, Sanders was under surveillance. He was seen driving up to the Mabry house in Tijeras Canyon, entering the home and later departing. After Sanders returned from his "source"--some thirty minutes after he was handed the $4,200--he remarked to Officer Gonzales that his "source" had to "dig up" the cocaine. Id. at 18; R., Vol. IV, p. 374. Gonzales opened the package of cocaine, indicated his satisfaction, and after remarking to Detective Medrano that the balance of the money should be given to Sanders, proceeded to arrest Sanders. (R., Vol. III, p. 18.) Officer Gonzales arrested Sanders when the balance of the purchase was handed to him because he did not wish to risk loss of the money and have Sanders returned to the City Jail since Sanders' brother, Dennis, worked there. The officers reasoned that if Sanders was "booked" his source might be notified. Further, Sanders had indicated immediately after his arrest that he had to return "right away" to his source with the rest of the money. Officer Gonzales was aware, from his experience in drug investigations, that if Sanders did not return to his "source"

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within five or ten minutes, the source would be suspicious. Id. at 19. The officers were not sure that Sanders would go back to his source's house if they permitted him to leave with the $12,600, purportedly to acquire the balance of the cocaine. Id. at 20. The officers did not wish to risk the city's money. Id. (R., Vol. VII, p. 884.)

About ten officers were involved in the transaction between Gonzales and Sanders on the evening of April 4, 1985. Most of them were conducting surveillance. (R., Vol. III, pp. 111, 112.) These detectives had observed Sanders going to and from the Mabry residence that evening on two occasions, first about 9:00 p.m. and later about 10:30 p.m. Id. at 121, 124.

After Sanders was arrested, he was handcuffed and searched. The officers did not find the marked $4,200 in cash previously handed to Sanders. Sanders remarked that he had to return immediately with the $12,600. The officers, experienced in such drug transactions, understood this remark to mean that if Sanders did not return to the home of his "source," Mabry, within a short period of time, incriminating evidence would be destroyed or secreted. (R., Vol. IV, p. 382.) Some six officers, including Gonzales, then proceeded to the Mabry house with Sanders handcuffed in order to "secure" the home and its contents while awaiting a search warrant. Id. at pp. 381, 382. Before the officers left to secure the...

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