836 F.2d 1268 (10th Cir. 1988), 87-1692, United States v. Aquino

Docket Nº:87-1692.
Citation:836 F.2d 1268
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Luis Raul AQUINO, Defendant-Appellant.
Case Date:January 11, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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836 F.2d 1268 (10th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Luis Raul AQUINO, Defendant-Appellant.

No. 87-1692.

United States Court of Appeals, Tenth Circuit

January 11, 1988

Page 1269

Mark T. Langston (Victor L. Abbo with him on the brief), Boulder, Colo., for defendant-appellant.

Kenneth R. Fimberg, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, SETH and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Defendant Aquino was convicted of one count of illegally possessing a firearm pursuant to 26 U.S.C. Sec. 5861 (1982). He appeals the district court's denial of his motion to suppress evidence seized during a search of his apartment. We affirm.

I.

This case began with an investigation into illegal drug trafficking by the Lakewood, Colorado police. Lakewood Department of Public Safety Agent Gina Morelli went undercover to purchase illegal drugs. A confidential informant took her to the home of Steven Ruebush, who the informant believed sold cocaine. 1 They arrived about 5:00 p.m. on May 19, 1986. Agent Morelli offered $2000 for one ounce of the drug. As expected, Ruebush did not have the cocaine himself; however, he asserted that if Morelli gave him the $2000 he could get some. Agent Morelli refused and told Ruebush to call his source.

Ruebush then called Tony Vega, whom Ruebush referred to as "his man." He told Vega that he had seen "a lot of green" and that the buyer wanted to see some drugs. The conversation ended with Ruebush agreeing to go to Vega's home to discuss the deal. Police officers stationed outside Ruebush's home followed him to Vega's residence while Morelli and the informer remained. A few minutes later, Ruebush returned home. He told Agent Morelli that his man was going to get the cocaine and would deliver it in twenty minutes.

Meanwhile, officers who had remained at Vega's home saw him leave immediately after Ruebush had gone. They followed him to an apartment complex at 6005 West 28th Ave. Vega entered the complex, but the officers did not identify the apartment he visited. Vega left after a short time and returned directly home. When Ruebush

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called, Vega told him that the source required cash in advance. In response to this common practice among drug dealers, Agent Morelli then agreed to front a smaller amount of money for a sample of cocaine. If all went well, she would then pay the remaining amount. Ruebush returned to Vega's residence with $400 from Morelli.

After Ruebush arrived, Vega drove directly to the 28th Avenue apartment complex while Ruebush waited at Vega's home. This time, the police observed Vega enter a particular apartment. He left shortly thereafter and drove directly home. Ruebush then called Morelli to say that he was on his way back. He arrived at approximately 7:45, produced a small amount of cocaine, and was immediately arrested. Shortly after the arrest, Ruebush's phone started ringing, but he was not allowed to answer. He told the police that he believed that the caller was Vega. At this time, the police also questioned several other persons who had arrived during various stages of the transaction. Although some were uncooperative and at least one produced false identification, the police released these individuals, believing that insufficient probable cause existed for their arrest.

After securing the Ruebush residence, police proceeded to Aquino's home. Because the apartment was in Edgewater, the officers contacted the local police. The Lakewood officers then waited thirty to forty minutes, or until 9:20 p.m., for the Edgewater police to arrive. Without attempting to secure a warrant or determine who lived in the apartment, the officers from the two towns planned a warrantless entry. Edgewater officers knocked on the door and told the woman who answered and identified herself as Maria Martinez that they had heard a complaint about noise. When she opened the door, two Lakewood officers rushed in with guns drawn to find Aquino on his living room couch holding a baby.

The agents then conducted a "protective sweep" of the apartment. 2 During this sweep, one agent entered a closed closet and observed an OHAUS triple beam scale, a grinder, and other paraphernalia often used by drug dealers. No other incriminating evidence or suspects were observed during the sweep. The officers arrested Aquino and obtained consent from him and Ms. Martinez to search the apartment. The consent search revealed cocaine, guns, and over $3000 in cash including the marked bills used by Agent Morelli to purchase the sample of cocaine. The officers seized the evidence.

Aquino was charged with two counts of illegally possessing a firearm. He filed a motion to suppress both the evidence seized and various incriminating statements he made after the warrantless entry of his home. The district court denied the motion. Aquino was then convicted on one count and sentenced to fifty-four months in prison. He appeals the denial of his motion to suppress on the ground that the warrantless entry of his home was unconstitutional.

II.

"[T]he most basic constitutional rule" in the search and seizure area is that exceptions to the warrant requirement must be "specifically established," "well delineated" and "jealously and carefully drawn." 3 Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The notion that

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emergency circumstances may in appropriate cases make a warrantless search constitutional if probable cause exists is a clearly established exception to the warrant requirement...

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