U.S. v. Richard

• Decision Date: 22 June 1993
• Docket Number: No. 92-3564,92-3564
• Citation: 994 F.2d 244
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Walter RICHARD, Lesburn Lloyd Da Costa, and Headley Weir, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 244

994 F.2d 244

UNITED STATES of America, Plaintiff-Appellant, v. Walter RICHARD, Lesburn Lloyd Da Costa, and Headley Weir Defendants-Appellees.

No. 92-3564.

United States Court of Appeals Fifth Circuit.

June 22, 1993.

Herbert W. Mondros, Gaven T. Kammer, Fred P. Harper, Jr., Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, LA, Sean Connelly, Mervyn Hamburg, Atty., Kathleen Felton, Atty., Dept. of Justice, Nina S. Goodman, Crim. Div., Washington, DC, for plaintiff-appellant.

Edward J. Castaing, Jr., Crull, Castaing & Lilly, New Orleans, LA, for Richard.

Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Breslin & Murray, Metairie, LA, for Da Costa.

Patrick C. McGinity, New Orleans, LA, for Weir.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REYNALDO G. GARZA, WILLIAMS, and JONES, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

The government brings this interlocutory appeal of the district court's pretrial order to suppress evidence discovered in two motel rooms. The district court found that customs agents had violated the Fourth Amendment when they made a warrantless entry and search of a room at the Superdome Motor Inn in New Orleans, Louisiana. The district court also concluded that any consent given to search a room at the nearby Economy Motor Lodge was not voluntary. As a result, the district court suppressed most of the evidence discovered during the two searches. After reviewing the record, we affirm the suppression of evidence found in the Superdome Motor Inn and reverse the suppression of evidence from the Economy Motor Lodge.

I. FACTS AND PRIOR PROCEEDINGS

In January 1992, federal customs agent Robert Mensinger obtained information that the M/V HAVORN would arrive in Gramercy, Louisiana, with drugs attached to the hull. Mensinger and agent Barry Wood drove to Gramercy on January 31, 1992, and set up surveillance near where the HAVORN had docked. During the night, the agents discovered a van parked in the area and noticed that it contained, among other things, space for cargo, a diving tank, and a VHF marine radio. At 6:00 a.m., the agents saw a man run from the levee to the van and begin to drive away, but the agents stopped the van. Defendant Walter Richard emerged, wearing a diving suit.

The agents questioned Richard and searched the van, in which they found a card in the name of Dani Gonzalez and a beeper with the number locked in for the Superdome Motor Inn in New Orleans. For more than three years the agents had suspected Gonzalez of involvement in marihuana smuggling. Richard then admitted that he had been diving with two others, one of whom was called Johnny, and that Johnny was staying in Room 214 of the Superdome Motor Inn. While Wood arrested Richard, Mensinger called for local help to search the area for the other two men. Mensinger also requested by radio that other agents meet him at the Superdome Motor Inn. Mensinger searched the ship area for one and a half hours. Then, he left Gramercy at 8:00 a.m. and reached the motel by approximately 9:00 a.m.

The agents first spoke with the Superdome Motor Inn's clerks, who confirmed that two men from Barbados were registered to stay in Room 214 and that the men had been making and receiving numerous telephone calls. The agents knocked on the door of Room 214 and announced that they were police officers. The agents contend that, although the occupants responded "Okay. Okay. Wait a minute," the door did not open immediately. The agents then say they heard people talking softly, doors or drawers slamming, and footsteps moving about. As they saw the doorknob turn, the agents kicked in the door and entered the room.

One agent immediately handcuffed defendant-appellee Headley Weir and patted him down for weapons. A patdown of defendant-appellee Lesburn Lloyd Da Costa revealed a .45 caliber pistol and a key to Room 241 of the Economy Motor Lodge. After arresting the men, agents learned that both knew Dani Gonzalez, who had been staying in the room with Weir. Da Costa claimed that he was staying at the Economy Motor Lodge, but had fallen asleep in Room 214 while waiting for Gonzalez. A further search of the room turned up a ledger and two address books marked as Gonzalez's.

Agents maintain that Da Costa then gave them permission to search his room at the Economy Motor Lodge, an assertion that Da Costa denies. Agents Sidney Roberts and Eileen Escoto went to Da Costa's room, which was occupied by Susan Collymore. After the agents informed Collymore that Da Costa had given consent to search the room, she admitted them, stating, "Well, I don't have anything to do with it. Search the room. Search anything you want. I don't have any part of this. I'm just here with my boy friend." The search produced four empty new suitcases, a box of trash bags, and three boxes of dryer sheets.

Richard, Weir, and Da Costa were indicted for conspiracy to possess marihuana with intent to distribute, conspiracy to import marihuana, and carrying firearms during drug trafficking activities. Da Costa was also charged with being a felon in possession of a weapon. Before trial, the defendant-appellees filed motions to suppress evidence. The district court denied Richard's motion and refused Da Costa's request to suppress evidence found in Room 214 of the Superdome Motor Inn. Nevertheless, it granted Weir's motion to suppress the evidence found in Room 214 of the Superdome Motor Inn and Da Costa's motion to suppress evidence discovered in Room 241 of the Economy Motor Lodge. The government has timely appealed.

II. DISCUSSION

We consider the evidence in the light most favorable to the prevailing party when we review the granting of a motion to suppress. The district court's factual findings are accepted unless they are clearly erroneous. Questions of law are considered de novo. United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir.1991), cert. denied sub nom. Rodriguez v. United States, --- U.S. ----, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992).

A. Entry and Search at the Superdome Motor Inn

The Fourth Amendment protects people in their homes from unreasonable searches and seizures. The Fourth Amendment requires probable cause to obtain a warrant either to arrest a suspect in his home or to search the home. This Fourth Amendment protection is extended to guests staying in hotel rooms. Stoner v. State of Cal., 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Warrantless searches and seizures inside someone's home are presumptively unreasonable unless the occupants consent or exigent circumstances exist to justify the intrusion. Payton v. New York, 445 U.S. 573, 586, 590, 100 S.Ct. 1371, 1380, 1382, 63 L.Ed.2d 639 (1980). Thus, if agents have no warrant and no consent, even if they have probable cause and statutory authority to arrest a suspect, they must also have exigent circumstances to enter. Arizona v. Hicks, 480 U.S. 321, 327-28, 107 S.Ct. 1149, 1154, 94 L.Ed.2d 347 (1987) ("A dwelling-place search, no less than a dwelling-place seizure, requires probable cause...."). Because consent was not an issue in the entry of Room 214, we focus on the presence of exigent circumstances.

Exigent circumstances include hot pursuit of a suspected felon, the possibility that evidence may be removed or destroyed and danger to the lives of officers or others. Capote-Capote, 946 F.2d at 1103. A district court may consider several relevant factors when determining whether exigent circumstances exist. These factors include:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant;

(2) [the] reasonable belief that the contraband is about to be removed;

(3) the possibility of danger to the police officers guarding the site of the contraband while a search warrant is sought;

(4) information indicating the possessors of the contraband are aware that the police are on their trail; and

(5) the ready destructibility of the contraband and the knowledge "that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic."

United States v. Thompson, 700 F.2d 944, 948 (5th Cir.1983) (citing United States v. Rubin, 474 F.2d 262, 268 (3rd Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973)). Exigent circumstances, however, do not pass Fourth Amendment muster if the officers deliberately create them. United States v. Webster, 750 F.2d 307, 327 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985).

The district court found that exigent circumstances arose when the agents knocked at Room 214's door. The court, however, also found that the agents had manufactured the exigencies by knocking on the door and announcing that they were police officers. The government argues on appeal that the court clearly erred in its finding that the exigencies were contrived. The presence of exigent circumstances is a finding of fact, so the inquiry is whether the finding was clearly erroneous. United States v. Vasquez, 953 F.2d 176, 179 (5th Cir.), cert. denied sub nom. Gomez v. United States, --- U.S. ----, 112 S.Ct. 2288, 119 L.Ed.2d 212 (1992).

The agents concede that the reason they went to the motel room was to try to locate Dani Gonzalez. They had only a reasonable suspicion that Dani Gonzalez was in Room 214. Consequently, they did not seem to have considered a warrant a possibility. The agents testifying at the suppression hearing told the court that they were conducting an "investigative stop" to determine Gonzalez's whereabouts. The supervisor stated that the agents intended to enter the room one way or another to further that investigation. Because the officers thought they had only reasonable suspicion and not probable cause, there was no justification for either a warrant or a warrantless search. The agents' own testimony belies the government's original argument that exigent circumstances...