977 F.2d 677 (1st Cir. 1992), 90-1288, United States v. Morris

Docket Nº:90-1288, 90-1644.
Citation:977 F.2d 677
Party Name:UNITED STATES, Appellee, v. Howard MORRIS, Defendant, Appellant. UNITED STATES, Appellee, v. Rafael TORMES-ORTIZ, Defendant, Appellant.
Case Date:October 08, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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977 F.2d 677 (1st Cir. 1992)

UNITED STATES, Appellee,

v.

Howard MORRIS, Defendant, Appellant.

UNITED STATES, Appellee,

v.

Rafael TORMES-ORTIZ, Defendant, Appellant.

Nos. 90-1288, 90-1644.

United States Court of Appeals, First Circuit

October 8, 1992

Heard July 28, 1992.

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[Copyrighted Material Omitted]

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Joseph C. Laws, Jr., Hato Rey, P.R., for defendant, appellant Howard Morris.

Arthur Joel Berger, with whom Robert L. Moore, Miami, Fla., was on brief, for appellant Rafael Tormes-Ortiz.

Lena D. Mitchell, Atty., Criminal Div., Narcotic and Dangerous Drug Section, Dept. of Justice, with whom Robert S. Mueller, III, Asst. Atty. Gen., Mary Lee Warren, Chief, New York City, Margaret A. Grove, Deputy Chief, Washington, D.C., and Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., were on brief, for appellee.

Before TORRUELLA and SELYA, Circuit Judges, and ZOBEL, [*] District Judge.

TORRUELLA, Circuit Judge.

These appeals involve various rulings made by the United States District Court for the District of Puerto Rico with reference to the joint trials of appellants Rafael Tormes-Ortiz ("Tormes-Ortiz") and Howard Morris ("Morris"). Appellant Tormes-Ortiz was convicted of conspiracy to possess marijuana and cocaine, possession of marijuana and cocaine, possession of cocaine with intent to distribute, use of a firearm during the commission of a drug crime, and travel in interstate commerce to possess cocaine. Tormes-Ortiz appeals the district court's denial of three separate motions to suppress and the imposition of a term of special parole for the conviction of possession of marijuana with intent to distribute on November 1, 1989. Appellant Howard Morris was convicted of importation of cocaine. He appeals the district court's denial of three different motions to suppress.

In addition both Morris and Tormes-Ortiz appeal the trial court's denial of a motion challenging the legality of the jury verdict and a motion for a new trial presented by Tormes-Ortiz, and adopted by Morris. In essence the motions challenge the verdict because it is alleged that the jury deliberated in the Spanish language notwithstanding the failure to establish that all the members of the panel were proficient in that language. We consider each of the appeals separately and relate the relevant facts.

RAFAEL TORMES-ORTIZ

Facts

On October 14, 1985, Puerto Rican law enforcement officers executed a search warrant at 739 Ginis Corvalan Street in Cupey, Rio Piedras, Puerto Rico. Officers Cruz-Perez and Fernandez found appellant Tormes-Ortiz in a carport attached to the residence. According to Officer Cruz-Perez's

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testimony, Tormes-Ortiz permitted the officers to enter the house after reading the warrant. Once inside the house the two officers found three others, including an unidentified woman. Tormes-Ortiz immediately told the police that the woman had no connection to anything inside the residence or inside the vehicles there, and that everything belonged to him. Except for presenting the search warrant neither officer had spoken with Tormes-Ortiz prior to this statement. Immediately after Tormes-Ortiz made the statement Officer Cruz- Perez advised him of his Fifth Amendment rights. Tormes-Ortiz replied by saying that he understood these rights as he had been arrested on previous occasions, and offered to turn over everything inside the house to the officers if they would agree not to arrest the woman. Officer Fernandez agreed to the offer.

Tormes-Ortiz then directed Officer Cruz-Perez to the living room where the agent seized a transparent "zip lock" bag containing white powder. He also directed Officer Cruz-Perez to a bedroom closet from which the agent seized a green trash bag stored inside a carton containing approximately twenty-five pounds of marijuana. From there Tormes-Ortiz directed Officer Cruz-Perez to a vehicle in the carport from which the officer seized two blocks of compressed white powder. Tormes-Ortiz made no further statements during this period of time.

After seizing these items, Officer Cruz-Perez searched the house and the remaining vehicles without Tormes-Ortiz' help. During that search the officer seized a plastic bag containing powder from another vehicle as well as some weapons, ammunition, and several transistor radios. Officer Cruz-Perez then arrested Tormes-Ortiz and the other two men at the residence.

Standard of Review

" '[T]he findings of the district court after a hearing on a pretrial motion to suppress are binding on appeal unless they are clearly erroneous.' " United States v. Falon, 959 F.2d 1143, 1146 (1st Cir.1992) (quoting United States v. McLaughlin, 957 F.2d 12, 17 (1st Cir.1992)). However, we conduct an independent review of the search warrant to determine the sufficiency of its language. United States v. Hinds, 856 F.2d 438, 440 (1st Cir.1988).

Legal Analysis

I. Motion to Suppress physical evidence obtained pursuant to a search warrant executed on October 14, 1985.

Appellant Tormes-Ortiz filed a motion to suppress all physical evidence derived from the search of the residence at Cupey, Rio Piedras, Puerto Rico on October 14, 1985. 1 According to appellant Tormes-Ortiz the warrant was facially invalid because it was overbroad. The warrant describes the property authorized to be seized as:

... all that is relating [sic] to drugs and narcotics and any other object that is in violation of the law.

Appellant suggests that this warrant literally allowed the police to search for anything anywhere in the residence, including items that could not be described as "drug paraphernalia." 2 However, both the magistrate

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and the trial court rejected appellant's facial attack on the warrant. Insofar as "drugs and narcotics" are concerned, we agree.

The Fourth Amendment provides that "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." (Emphasis added). U.S. Const. amend. IV. In requiring a particular description of articles to be seized, the Fourth Amendment " 'makes general searches ... impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' " United States v. Fuccillo, 808 F.2d 173, 175 (1st Cir.1987) (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 512, 13 L.Ed.2d 431 (1965)). Unfettered discretion by the executing officer is one of the principal evils against which the Fourth Amendment provides protection, and thus warrants which lack particularity are prohibited.

General descriptions in warrants, however, have been accepted when the surrounding circumstances render it reasonable. See, e.g., United States v. Cortellesso, 601 F.2d 28 (1st Cir.1979) (general description upheld due to practical impossibility of precise description); Vitali v. United States, 383 F.2d 121 (1st Cir.1967) (general description permissible due to common nature of items to be seized). In United States v. Klein, 565 F.2d 183 (1st Cir.1977), we set forth a two-part test which in particular circumstances helps to determine whether the warrant satisfies the requirements of the Fourth Amendment in this respect. First, we consider the degree to which the evidence presented to the magistrate establishes reason to believe that a large collection of similar contraband is present on the premises to be searched. Second, we consider the extent to which, in view of the possibilities, the warrant distinguishes or provides the executing agents with criteria for distinguishing the contraband from the rest of an individual's possessions. Applying these factors in Klein, we held that a search warrant authorizing the seizure of certain 8-track electronic tapes and tape cartridges which were unauthorized "pirate" reproductions in violation of the copyright laws was invalid because it provided only a generic description of the goods to be seized from the retail store which was to be searched. Both the affidavit and the warrant in Klein failed to establish that there was a large collection of contraband in the store and failed to explain the methods by which the executing officers could differentiate any contraband from the rest of defendant's possessions. This information could have been easily made available to the magistrate without undue burden on enforcement personnel, but was not.

Both factors in the Klein test are met in this case. The magistrate was presented with an affidavit describing two separate drug transactions which had been observed at 739 Ginis Corvalan Street, one involving cocaine, and the other involving marijuana. In both transactions, the drugs came from the house at the above cited address so that there was sufficient evidence to believe that a large collection of similar contraband would be present in the premises that were to be searched pursuant to the warrant. Further, all the facts related in the supporting affidavit were included in the warrant itself. 3 Thus, the executing officers were aware that the underlying offense was the illegal trafficking of cocaine

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and marijuana, and that they were looking for cocaine and marijuana, and anything else related to the trafficking of those drugs. 4 This is clearly not a case where, insofar as drugs and narcotics are concerned, the executing officers were left with unfettered discretion as to what they could seize. The officers in fact seized amounts of cocaine and marijuana from the searched premises. Accordingly, we find that the police properly seized the cocaine and marijuana found in the house, and that the district court did not err in denying appellant's motion to...

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