U.S. v. Lopez

• Decision Date: 04 February 1993
• Docket Number: No. 92-2010,92-2010
• Citation: 989 F.2d 24
• Parties: UNITED STATES, Appellee, v. Alexander LOPEZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 24

989 F.2d 24

UNITED STATES, Appellee, v. Alexander LOPEZ, Defendant, Appellant.

No. 92-2010.

United States Court of Appeals First Circuit.

Heard Feb. 4, 1993.

Decided March 25, 1993.

William T. Murphy, Providence, RI, was on brief, for defendant, appellant.

Zechariah Chafee, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, RI, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

In the district court, Alexander Lopez was convicted of possessing cocaine with intent to distribute and with conspiracy to commit the same offense. 21 U.S.C. §§ 841(a)(1), 846. The jury deadlocked on two other counts, later dismissed, charging Lopez with possessing a short barrel shotgun and with its use in drug dealing. 26 U.S.C. § 5861(d); 18 U.S.C. § 924(c)(1). On this appeal, Lopez contests only the district court's refusal to suppress evidence obtained at the time of his arrest. We affirm.

The pertinent facts, developed mainly at the suppression hearing, can be briefly stated. Early on the morning of June 22, 1991, Charles Perry, a long-time cocaine user, went to a building in Providence, Rhode Island, to purchase cocaine. The building was a decrepit three-story tenement and, on the second floor, there was a kitchen, an adjoining bathroom, and three adjoining bedrooms available for rent on a weekly basis to tenants, who were expected to share the kitchen and bathroom. On the morning of June 22, one bedroom, previously used by prostitutes, was empty; one was occupied by a respectable tenant away at work; and the last was used by a cocaine dealer named Blackie for whom Lopez worked.

Arriving at the second floor by the back stairs, Perry found the door to the kitchen open and entered to find Lopez and another man. Perry bought a small bag of cocaine from Lopez and left to inject the cocaine. Several hours later, Perry returned. Finding the second floor door now closed, he negotiated a sale from the outside, took his purchase downstairs and found that he had bought baking soda. Returning to the second floor, he pounded on the door and yelled until admitted. There he found Lopez, the unidentified man present on his first visit, and Blackie. When Perry began to yell, Blackie leveled a sawed-off double-barrel shotgun at Perry and told him to leave.

Retreating to the yard outside, Perry continued to yell. Blackie left, threatening Perry as he did so. Perry then had someone call the police to report that Perry had been threatened with a sawed-off shotgun. Lopez emerged and gave Perry a packet of cocaine. Police cars, responding to a radio alert, began to arrive. Pointing to the building, Perry then described to several officers a male wearing green camouflage trousers and no shirt. Officer Tombs, who arrived separately, heard the description and saw Lopez standing in the yard behind the building, without a shirt and wearing green camouflage pants, apparently holding an object.

Tombs, clad in uniform, called on Lopez to halt. Instead, Lopez dashed into the building and ran to the second floor. Tombs pursued, broke through two intervening doors, and arrested Lopez in the little bedroom. As Tombs handcuffed Lopez, a radio fell over, and six tiny baggies of cocaine were disclosed. Other officers appeared, including Officer Vanderhorst, and a search for the shotgun ensued. Vanderhorst, entering the bathroom, saw a ceiling tile missing. He stood on the toilet, peered in, and saw a big bag, which proved to have smaller bags of cocaine inside. Then, looking in again, he saw a gun butt. As he climbed down, possibly using a ceiling panel as a hand-hold, the ceiling collapsed and spilled a sawed-off shotgun onto the floor. From handcuffing to discovery of the gun, only a few minutes passed.

After a suppression hearing before trial, the district court refused to suppress the shotgun or the cocaine found in the bedroom and the bathroom. The court found that the arrest leading to the discovery of cocaine in the bedroom was based upon probable cause and that Lopez had no standing to object to the search of the bathroom. On the issue of standing, the court found that the bathroom was available to anyone on the premises, had no outside lock, and engendered no expectation of privacy. The cocaine and shotgun were offered as evidence at trial. Lopez was convicted on the cocaine counts.

On this appeal, Lopez argues that as an authorized user of the apartment, he had standing to object to the bathroom search under United States v. Irizarry, 673 F.2d 554 (1st Cir.1982). In turn, the government defends the district court's suppression ruling primarily by arguing lack of standing, citing United States v. Thornley, 707 F.2d 622 (1st Cir.1983). As a second string to its bow, the government argues that exigent circumstances justified the search for the shotgun without awaiting a warrant. We think the standing issue a close call and prefer to affirm on the merits of the Fourth Amendment claim.

It is common ground that the Fourth Amendment forbids only unreasonable searches and seizures; that normally a search is unreasonable absent a warrant issued by a neutral magistrate upon a showing of probable cause; and that to excuse the lack of a warrant, the police must ordinarily bring the case within one or more of a list of exceptions to the warrant requirement. See generally Coolidge v. New Hampshire, 403 U.S. 443, 477-78, 91 S.Ct. 2022, 2043-44, 29 L.Ed.2d 564 (1971). A few of the exceptions are huge, such as arrest for felony and search incident to arrest, which embrace Lopez' arrest in the bedroom--assuming probable cause to pursue him in the first place. Most of the exceptions, however, are narrower and more complex.

The exception with which we are concerned in this case excuses the lack of a warrant where "exigent circumstances" exist, requiring speed and making delay improvident. Although the most frequent example is the threatened destruction of evidence, e.g., Cupp v. Murphy, 412 U.S. 291, 294-96, 93 S.Ct. 2000, 2003-04, 36 L.Ed.2d 900 (1973), a solid line of cases finds exigent circumstances where the safety of law enforcement officers or the general public is threatened. E.g., Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967); Criminal Procedure Project, 80 Geo.L.J. 939, 987 (1992) (collecting numerous cases). This circuit has so held. E.g., United States v. Rengifo, 858 F.2d 800, 805 (1st Cir.1988), cert. denied, 490 U.S. 1023, 109 S.Ct. 1752, 104 L.Ed.2d 189 (1989).

The question here, then, is whether the police had a reasonable basis to believe that a threat to safety existed of an urgency and magnitude that would justify a warrantless search of the kind that occurred. In truth, two different issues are embraced in this formula. One is the police...