892 F.2d 1047 (9th Cir. 1990), 88-5408, U.S. v. Fox

• Docket Number: 88-5408.
• Date: 09 January 1990
• Citation: 892 F.2d 1047
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Moshe FOX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1047

892 F.2d 1047 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Moshe FOX, Defendant-Appellant.

No. 88-5408.

United States Court of Appeals, Ninth Circuit

January 9, 1990

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Dec. 5, 1989.

C.D.Cal.

AFFIRMED.

Appeal from the United States District Court for the Central District of California; Laughlin E. Waters, District Judge, Presiding.

Before GOODWIN, Chief Judge, and SCHROEDER and O'SCANNLAIN, Circuit Judges.

MEMORANDUM ^[*]

Moshe Fox appeals his conviction, following a jury trial, for conspiracy to distribute cocaine, possession with intent to distribute cocaine and distribution of cocaine.

The district court denied Fox's motion to suppress a photograph of Fox and a paper containing the telephone number of Barbara Molar, the alleged buyer of the cocaine. The items were found in the hotel room which officers entered without a warrant. The district court further denied Fox's motion to suppress evidence regarding a telephone call placed by Fox to room 322 and received by Agent Rasmussen in that room. Fox maintains on appeal that the district court erred in finding that exigent circumstances justifying the warrantless entry existed. We disagree. The evidence shows that the officers had reason to believe that Fox had recently been in the room, that a cocaine transaction was contemplated in that room, and that an agent heard rustling sounds coming from the room. Furthermore, a telephonic warrant could not have been obtained without increasing the risk that the cocaine would be destroyed given the fact that cocaine is readily disposable and that it ultimately took Agent Rasmussen over an hour to obtain a telephonic warrant. See United States v. Echegoyen, 799 F.2d 1271, 1279 n. 6 (9th Cir.1986) (obtaining telephonic warrant impractical despite the fact that officers spent approximately three hours at the location before making their initial entry); see also United States v. Good, 780 F.2d 773, 775 (9th Cir.), cert. denied, 475 U.S. 1111 (1986). Under such circumstances, a warrant for entry was not required. See United States v. Astorga-Torres, 682 F.2d 1331, 1335 (9th Cir.), cert. denied, 459 U.S. 1040 (1982) (warrantless entry justified where officers believed appellants were in possession of drugs--a substance particularly susceptible to destruction); see also United States v. Cisneros, 448 F.2d 298, 304 (9th Cir.1971). Since the warrantless entry was justified, the phone call and any evidence discovered in plain view were admissible. Astorga-Torres, 682 F.2d at 1334.

Even if the entry was not valid, the district court found that the photograph and the paper containing Molar's number were only discovered after a valid telephonic warrant had been obtained. Under Segura v. United States, 468 U.S. 796, 813-14 (1984), evidence seized pursuant to a valid search warrant is admissible even if there was a previous invalid entry into the place to be searched so long as the facts forming the basis for the search warrant were not derived from the prior illegal entry. Fox does not contend that evidence obtained during the initial entry formed the basis for the subsequent search warrant; the evidence, therefore, was admissible.

Fox next contends that the district court abused its discretion in admitting hearsay...