United States v. Serrano-Acevedo

• Decision Date: 13 June 2018
• Docket Number: No. 16-2009, No. 16-2049,16-2009
• Citation: 892 F.3d 454
• Parties: UNITED STATES, Appellee, v. Hector SERRANO-ACEVEDO, Defendant, Appellant. United States, Appellee, v. Virgilio Diaz-Jimenez, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

892 F.3d 454

UNITED STATES, Appellee,

v.Hector SERRANO-ACEVEDO, Defendant, Appellant.

United States, Appellee,

v.Virgilio Diaz-Jimenez, Defendant, Appellant.

No. 16-2009

No. 16-2049

United States Court of Appeals, First Circuit.

June 13, 2018

Rafael F. Castro Lang for appellant Hector Serrano-Acevedo.

James L. Sultan, with whom Kerry A. Haberlin and Rankin & Sultan were on brief, for appellant Virgilio Diaz-Jimenez.

Nicholas W. Cannon, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Lynch, Kayatta, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

We address in this case important questions of Fourth Amendment protections in a person's home. As we did in United States v. Delgado-Pérez, 867 F.3d 244 (1st Cir. 2017), we conclude that the government overstepped the mark and that a motion to suppress the fruits of a warrantless search of a defendant's home in Puerto Rico should have been granted.

Virgilio Diaz-Jimenez ("Diaz") and Hector Serrano-Acevedo ("Serrano"), after a joint trial, were found guilty of armed bank robbery, in violation of 18 U.S.C. § 2113, and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924. Both defendants challenge their convictions, arguing that key portions of the evidence introduced against them were improperly admitted.

Diaz argues that the government's warrantless search of his home violated his Fourth Amendment rights and that the district court erred by denying his motion to suppress the evidence uncovered during that search. Finding that the government's search does not fit within the protective sweep or voluntary consent exceptions under Fourth Amendment doctrine, the only even arguably relevant exceptions to the warrant requirement, we hold that the search of Diaz's home was unconstitutional. The evidence uncovered during that search was central to the prosecution's case at trial, rendering this error prejudicial. We vacate Diaz's conviction and remand for further proceedings consistent with this opinion.

Serrano, the other defendant, argues that several testimonial statements made during the trial, some of which referenced statements made by a confidential informant who did not testify, were impermissible hearsay testimony. If there was any error, it was harmless, so we affirm Serrano's conviction.

I. Facts

We review the district court's "legal conclusions involved in denying a motion to suppress the evidence de novo and its findings of fact for clear error." Delgado-Pérez, 867 F.3d at 250 (quoting United States v. Marshall, 348 F.3d 281, 284 (1st Cir. 2003) ). "On a motion to suppress evidence seized on the basis of a warrantless search, the presumption favors the defendant, and it is the government's burden to demonstrate the legitimacy of the search." Id. (quoting United States v. Winston, 444 F.3d 115, 123-24 (1st Cir. 2006) ).

Two armed men entered the Oriental Bank in San Lorenzo, Puerto Rico around 8:30 AM on June 17, 2013. The first gunman brandished his firearm and ordered the bank's security officer to "kneel down." The robbers told everyone in the bank to get on the ground. The second gunman then ordered the bank's employees to open the vault. After the bank employees turned over the money in the vault area to the robbers, the gunmen left the bank and drove away in a white van.

The Puerto Rico Police Department provided a description of the van and its likely escape routes over the police radio. Officer Hector Ortíz-Alicia, hearing this, drove towards one of the possible escape routes. Once in the area, he saw a white van stopped by the side of the road. Ortíz-Alicia testified at trial that an armed individual got out of the van and, despite Ortíz-Alicia's orders to stop, fled into a grassy area nearby. Other testimony at the suppression hearing was that two people were seen leaving the van.

Ortíz-Alicia requested backup. Police searched the area with the help of a helicopter, but were unable to find the armed individual. The FBI and the Immigration and Customs Enforcement ("ICE") Task Force reported to the scene. Agent Aristedes Vázquez-Díaz from the ICE Task Force reported to Agent Félix Rivera from the FBI that he had been contacted by an informant who had information about the robbery.

Shortly thereafter and at a different place, Agent Rivera and one or more ICE Task Force officers met with a confidential source who provided the nicknames—El Domi and El Músico—and cell phone numbers of two people who the source said were responsible for the robbery. The source stated that he had been in contact with the two robbers since the robbery and that the robbers were hiding in nearby mountainous terrain and were waiting for the police helicopter to leave. The source stated that the robbers were expecting the source to pick them up. Agent Rivera had been planning to use this information to arrest the robbers at the pickup point. However, around 1:00 or 1:30 PM, the robbers notified the source that they had left their hiding place and no longer needed to be picked up. This information was passed on to law enforcement.

Law enforcement officers contacted the phone company in order to track the location of the robbers' two cell phones. One of the cell phones eventually became stationary in a rural, residential area in Barrio Borinquen. Between 3:30 and 4:30 PM, law enforcement officers traveled to that location, stopping at a crossroads close to the three-story home where they had been told the cell phone was located. The home was large and had a pool and a fence. Suspecting that the robbers were armed, Agent Rivera called in a SWAT team.

As the law enforcement officers waited at the crossroads for a SWAT team to arrive before approaching the residence, defendant Serrano drove through the crossroads in a blue Mitsubishi Nativa. Agent Vázquez-Díaz and Agent Julio Sánchez-Martínez, also from the ICE Task Force, recognized Serrano as El Músico, the person who the confidential informant had said was one of the robbers. Vázquez-Díaz had seen Serrano driving a blue Mitsubishi Nativa before. Sánchez-Martínez and Vázquez-Díaz gestured to Serrano to stop and blocked the Nativa's path with their patrol car.

The agents got out of the patrol car, approached Serrano's car, and saw a gun in it. The agents twice told Serrano not to reach for the gun, Serrano eventually complied, and the agents arrested him. Serrano admitted that the firearm was his. The agents recovered a dark hat and a black jacket from the vehicle. FBI agents later recovered a pair of blue and black Nike tennis shoes from inside the car and a bag full of cash hidden in the car's air filter. After the arrest of Serrano, the monitored cell phone was still located at the three-story house.

The evidence at the suppression hearing about what happened thereafter at the house was based on the testimony of the FBI agent in charge, Agent Rivera, who was not actually at the home initially. Around thirty minutes after Serrano's arrest, the SWAT team arrived at the crossroads near the large three-story home where the cell phone was said to be located. While Agent Rivera waited behind, the SWAT team approached the home, knocked on the door, and heard a toilet flushing and people talking inside the home. The SWAT team opened the door and called to the people inside the home, but remained outside. Diaz's wife came out of the home first and was detained, and Diaz came out shortly thereafter. Diaz was immediately arrested and was at some point handcuffed (the record does not reveal whether Diaz's wife was also handcuffed). SWAT team then, after Diaz was arrested outside, entered and did a sweep of the home.

During this sweep, the SWAT team "went to different places, and they saw money on top of the bed, they saw money inside the toilet." After the SWAT team had come outside following the search, they reported what they had seen to Agent Rivera, who by then had arrived. Agent Rivera then asked for Diaz's consent to conduct a search of his home. Diaz was arrested and in handcuffs at the time. Agent Rivera testified that Diaz consented verbally but refused to sign a form to that effect. The FBI then did a subsequent search of the house and recovered around $24,000 in cash and a box for a pistol. Diaz's wife consented to the search after it had occurred, and did so in writing. The cash found was bound with initialed bands, and bank tellers at the Oriental Bank later confirmed that their initials were on the bands.

Diaz filed a motion to suppress the evidence recovered during the warrantless search of his home. The magistrate judge held a hearing on the motion. Agent Rivera was the prosecution's only witness at that hearing. Agent Rivera did not testify that he was the one who ordered the SWAT team to perform the sweep, but he provided reasons for why he believed the search was justified. The prosecution primarily argued that the search was permissible because the officers were in "hot pursuit" of Diaz at the time. It did not even attempt to justify the search as a protective sweep meant to protect the safety of the officers.

Diaz, in opposition, argued that there was no "hot pursuit" because the SWAT team's search was conducted more than eight hours after the robbery and, further, he had already been placed under arrest before the sweep. The magistrate judge recommended that the district court deny Diaz's motion, based on acceptance of the prosecution's hot pursuit theory. The district court adopted that recommendation.

Evidence obtained during the search of Diaz's home was used at trial by the prosecution. A jury found Diaz and Serrano guilty of armed bank robbery and use of a firearm in the commission of a federal felony. Diaz was sentenced to 192 months' imprisonment and five years' supervised release. Serrano was sentenced to 180...