U.S. v. Valdes, 87-6088

• Citation: 876 F.2d 1554
• Decision Date: 13 July 1989
• Docket Number: No. 87-6088,87-6088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose VALDES, Lino Lopez, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1554

876 F.2d 1554

58 USLW 2114

UNITED STATES of America, Plaintiff-Appellee, v. Jose VALDES, Lino Lopez, Defendants-Appellants.

No. 87-6088.

United States Court of Appeals, Eleventh Circuit.

July 13, 1989.

John H. Lipinski, Miami, Fla., for Jose Valdes.

Harris Sperber, Robert Kalter, Miami, Fla., for Lino Lopez.

Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Eileen O'Connor, U.S. Atty's. Office, Ft. Lauderdale, Fla., Allan J. Sullivan, Lynne W. Lamprecht, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and EDMONDSON, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Section 881(a)(4) of title 21 of the United States Code provides that an automobile which is used to facilitate a narcotics transaction is subject to forfeiture to the United States. ¹ Section 881(b)(4) ² provides, in turn, that if "the Attorney General has probable cause to believe that [an automobile] is subject to ... civil forfeiture" under section 881(a), he may seize the automobile without a warrant, take it into custody, and initiate forfeiture proceedings. ³ In this case, the Attorney General, having probable cause to believe that automobiles owned by appellants Lino Lopez and Jose Valdes had been used to facilitate the possession or sale of cocaine, seized them pursuant to section 881(b)(4). The automobiles were thereafter searched, and the evidence thereby obtained led to appellants' convictions for cocaine trafficking.

At trial, appellants objected to the presentation of such evidence to the jury on alternate grounds: first, that section 881(b)(4), if properly interpreted, precluded the seizure of their automobiles without a warrant; second, that even if authorized under section 881(b), the seizures were barred by the fourth amendment to the Constitution because they were performed without a warrant. In this appeal, appellants ask us to uphold their objection, to set aside their convictions, and to grant them a new trial. We decline to do so, andaccordingly affirm. ⁴

I.

Appellants were charged with conspiracy to possess cocaine with intent to distribute, and possession and distribution of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982), and were tried together. The Government's proof established the following. On March 16, 1987, in Fort Lauderdale, Florida, Special Agent Harry Sommers of the United States Drug Enforcement Administration (DEA) was introduced to Ted Bronson by a confidential informant who told Sommers that Bronson could supply him with cocaine. Bronson subsequently agreed to sell Sommers a kilogram of cocaine for $24,000. The sale was to take place in the parking lot of the Central Shopping Plaza in Miami on March 18.

Sommers met Bronson at the shopping center on the 18th, at which time Bronson told him that someone else would supply the cocaine. Bronson then went to a public telephone and made a call. After completing the call, he walked to an Oldsmobile Toronado parked nearby, entered the car, and had a discussion with appellant Lopez who was seated in the car. ⁵ Bronson returned a few minutes later and told Sommers that the deal could not go through until his supplier saw the money. Sommers refused to display his money, and the sale did not take place. He and Bronson agreed, though, that they would try to conclude the deal at a later date.

On April 1, 1987, Bronson called Sommers, and they reached an agreement: Sommers would meet Bronson at a Broward County motel the next day, show him the money, and then drive with Bronson to the residence of the supplier in Miami. The next morning, the two men met at the motel as planned. After showing Bronson the money, Sommers and Bronson proceeded to Miami. On the way there, they stopped at a public telephone where Bronson made a call; when Bronson completed the call, he told Sommers that he had spoken to his supplier and that the cocaine would be available at 1:00 p.m. As they approached Miami, they stopped at a service station where Bronson made another call, and received one in return a few moments later. He then reported to Sommers that the cocaine his supplier had set aside for Sommers appeared to be of an inferior quality, so his supplier was arranging for another kilogram to be delivered. An hour later, from another location, Bronson called his supplier once again. After the call, he told Sommers that his supplier had a new supply of cocaine, although it would be eighty grams short. They then proceeded to the residence of Lopez.

Meanwhile, Lopez arrived at his Miami residence in the Oldsmobile Toronado ⁶ and parked in his garage. Approximately forty minutes later, appellant Jose Valdes arrived at Lopez' residence driving a Cadillac which he parked at the curb in front of the residence. Valdes entered Lopez' residence; a few moments later, he came out, retrieved a brown paper bag from the Cadillac, and reentered the house. A few minutes later, Bronson and Sommers arrived and parked across the street. Bronson pointed out the Cadillac to Sommers, and stated that it belonged to the person who was supplying Lopez cocaine. Bronson then entered Lopez' residence and returned with a brown paper bag containing 903.5 grams of cocaine, which he gave to Sommers.

With the cocaine in hand, Sommers signaled the DEA surveillance agents who had been following him to close in. The agents arrested appellant Lopez at the front door of his residence and appellant Valdes in the backyard. At the same time, the agents seized the Oldsmobile Toronado and the Cadillac, believing that the automobiles had been used to facilitate a drug transaction.

A post-seizure inventory search of the Oldsmobile Toronado revealed a mobile telephone bearing the same number as the telephone number listed in Bronson's address book under Lopez' name. A similar search of the Cadillac revealed a digital beeper as well as 27.8 grams of cocaine wrapped in brown paper. Telephone company toll records for the mobile telephone indicated that appellant Lopez had called the service station where Bronson and Sommers had stopped earlier in the afternoon and, moments later, had called the number of the digital beeper found in the Cadillac. At trial, the prosecutor relied on this evidence in urging the jury to find that appellants had been working together to traffick cocaine as alleged in the indictment.

II.

As noted, 21 U.S.C. Sec. 881(b)(4) authorizes the Attorney General to seize property without a warrant, and to take it into custody, if he "has probable cause to believe that the property is subject to ... forfeiture" under 21 U.S.C. Sec. 881(a). In this case, appellants do not dispute that the DEA agents who seized their automobiles (1) had probable cause to believe that the automobiles had been used to facilitate a cocaine transaction, and thus were subject to forfeiture, (2) had the authority, under the plain language of section 881(b)(4), to seize the vehicles and to take them into custody, and (3) conducted proper inventory searches. Appellants in effect concede that we must affirm their convictions unless we conclude either that as a matter of statutory interpretation, section 881(b)(4) contains a warrant requirement which the agents failed to meet, or that the seizures, and thus the subsequent inventory searches, violated the fourth amendment. ⁷

Appellants' first argument is that we should read into section 881(b)(4) two requirements in addition to the one stated in the section--that "the Attorney General ha[ve] probable cause to believe that the property is subject to ... forfeiture." These two requirements are that (1) the Attorney General obtain a warrant before seizing the property unless exigent circumstances prevent him from doing so, and (2) that the property be seized immediately following the occurrence of the illegal act that renders the property forfeitable. In this case, exigent circumstances were not present; thus, if we accept appellants' position, the evidence obtained from the inventory searches of their automobiles should have been suppressed. Second, and alternatively, if we conclude that the principles of statutory construction preclude the reading of section 881(b)(4) appellants propose, appellants argue that the seizures, having been effected without a warrant, violated the fourth amendment.

We reject appellants' first argument because section 881(b)(4) is unambiguous; in plain language, it gives the Attorney General the authority to seize property without a warrant if he has probable cause to believe that it is forfeitable. Appellants cite no principle of statutory construction that would permit us to interpret the section to include the two requirements they suggest. ⁸ We therefore apply the statute as written, ⁹ and turn to appellants' second argument, that the agents' conduct violated the fourth amendment.

The fourth amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

U.S. Const. amend. IV. Appellants contend that the seizures in this case were unreasonable, and thus violated the amendment, because they were made without a warrant, and no exigent circumstances which made the acquisition of a warrant impracticable existed. Hence, the district court should have invoked the exclusionary rule and suppressed the challenged evidence. See, e.g., Torres v. Puerto Rico, 442 U.S. 465, 471, 99 S.Ct. 2425, 2430, 61 L.Ed.2d 1 (1979).

The agents seized Valdes' Cadillac on the street, in front of Lopez' house; they seized Lopez' Oldsmobile Toronado in his garage. Neither appellant contends that the agents seized his automobile from a...