U.S. v. Barrios-Moriera

• Citation: 872 F.2d 12
• Decision Date: 30 March 1989
• Docket Number: BARRIOS-MORIER,D,No. 718,A,718
• Parties: UNITED STATES of America, Appellee, v. Jimmyppellant. ocket 88-1291.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 12

872 F.2d 12

UNITED STATES of America, Appellee, v. Jimmy BARRIOS-MORIERA, Appellant.

No. 718, Docket 88-1291.

United States Court of Appeals, Second Circuit.

Argued Jan. 31, 1989.

Decided March 30, 1989.

Margaret E. Alverson, New York City (Aranda & Guttlein, of counsel) for appellant.

Peter Sheridan, Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty. John Gleeson, Asst. U.S. Atty., of counsel) for appellee.

Before VAN GRAAFEILAND, CARDAMONE and PIERCE, Circuit Judges.

CARDAMONE, Circuit Judge:

When a police officer seizes a wrapped article that later turns out to be contraband, the defendant invariably argues that only after seeing the item unwrapped did the officer have probable cause to believe it was of a criminal nature, though his testimony at the suppression hearing is to the contrary. We examine that close question on this appeal by Jimmy Barrios-Moriera from a June 24, 1988 judgment of conviction in the United States District Court for the Eastern District of New York (Dearie, J.), convicting him of possession of more than 500 grams of cocaine with intent to distribute it in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(ii) (1982 & Supp. IV 1986).

FACTS

On the afternoon of July 22, 1987 three officers--Special Drug Enforcement Administration (DEA) Agent Dolinsky, Detective Healy and Sergeant Pena, the latter two of the New York City Police Department--were surveilling a parked black Audi automobile in the College Point area of Queens in connection with a recent drug-related homicide. At the suppression hearing, the DEA agent testified that he observed a blue Cadillac drive up 25th Road and make a left onto 123rd Street and drive past the black Audi parked on the right hand side of 123rd Street. Dolinsky then stated that the Cadillac "slowed down by the Audi, almost came to a stop and it appeared to me that the ... [driver of the Cadillac] looked at the Audi for a few seconds."

Agent Dolinsky then radioed officers Healy and Pena, related to them what he had observed, and that he intended to follow the Cadillac, which he did for five blocks until it stopped and parked on 120th Street across the street from an apartment building. While trailing the Cadillac, Dolinsky checked its license plate number and learned that appellant was the owner. He too parked on 120th Street, and watched Barrios get out, go to the trunk, and take out a large shopping bag with white handles. The agent decided to follow to "see where he was going with the bag," and relayed this intention to Healy and Pena, who were now parked behind him.

Losing sight of Barrios as he entered the apartment complex, Dolinsky picked up his pace--almost jogging--because he knew that the door of the apartment building would automatically lock when it closed. Catching the door just in time, the agent observed Barrios halfway up a flight of stairs in a common hallway. Dolinsky identified himself as a policeman, and told Barrios that he wanted to speak with him. But appellant continued up the stairs until he reached the door to his apartment, where he took out his keys and began to fumble with the lock, placing the shopping bag on the floor beside him.

When Dolinsky reached the top of the stairs, and was a step or two away from Barrios, he testified that he "glanced down to the bag" and "observed a rectangular object wrapped in tape." He thought that the wrapping was duct tape, and described the dimensions of the package--"approximately The agent thereupon picked up the bag, reached in and took the rectangular package in his hand, and told Barrios to go into his apartment. Dolinsky and Detective Healy--who now joined them--followed. Once inside, the officers encountered one Valderrama, whom Barrios described as a friend. Barrios consented to Healy's brief security check of the apartment. Dolinsky then informed Barrios of his rights and placed him under arrest. Later, appellant consented in writing to a full search, which unearthed two beepers.

                eight inches--eight inches in length by maybe four inches--four or five inches wide and four inches deep."    On the basis of his four years as a DEA Special Agent and the hundreds of kilograms of cocaine he had seized while working with the New York City Drug Enforcement Task Force, Dolinsky concluded that the package was cocaine.  He stated that "when they are packaged in a kilo form, they are usually wrapped in a masking tape, duct tape [or] contact paper type tape."    Thus, he was "fairly confident it was a kilo of cocaine."
                

On January 22, 1988 a suppression hearing was held before Judge Dearie in which appellant sought to demonstrate that the cocaine was unconstitutionally seized, or that it was tainted by Dolinsky's allegedly unlawful entry into Barrios' building. After hearing testimony from Dolinsky, Healy, Valderrama and Barrios, the district court denied the motion. At trial, appellant was convicted of cocaine possession with intent to distribute. This appeal raises two issues, both related to the denial of the suppression motion, and only one of which requires extended discussion.

DISCUSSION

To support his claim that it was clearly erroneous for the district court to find the testimony of Special Agent Dolinsky and Detective Healy credible, Barrios cites cases in which officers Dolinsky and Healy have testified, and focuses on one case in which there was an adverse credibility determination concerning Agent Dolinsky. This claim is readily disposed of because after reading the transcript of the suppression hearing, we cannot say that Judge Dearie's finding of credibility leaves us "with a definite and firm conviction that a mistake has been committed." United States v. Rios, 856 F.2d 493, 495 (2d Cir.1988).

Barrios' Fourth Amendment Claims

A. Entry and Seizure

Barrios' Fourth Amendment claims require a more detailed analysis. He asserts, first, that his motion to suppress the seized cocaine was improperly denied because Dolinsky's entry into his apartment building was unlawful. Barrios argues that the entry violated his reasonable expectation of privacy since Dolinsky penetrated an outer door that the agent knew would lock, and that he had a reasonable and legitimate expectation of privacy not merely in his apartment, but also in the common hallway of his multi-dwelling apartment complex.

The test to determine whether a person can claim Fourth Amendment protection in a given place depends upon whether the person has a legitimate subjective expectation of privacy in that area that society is prepared to accept as objectively reasonable. See California v. Greenwood, 486 U.S. 1, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988) (holding that there is no legitimate, subjective expectation of privacy in garbage put into plastic bags and placed out on the curb); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The intrusion here was not into appellant's home, where--absent a warrant issued upon probable cause or exigent circumstances--such an intrusion is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980). Here the police entry was into a common hallway, an area where there is no legitimate expectation of privacy. Thus, a warrantless arrest is permissible even though the area was guarded by a locked door. See United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976); United States v. Holland, 755 F.2d 253, 255-56 (2d Cir.) Appellant next argues that he was unlawfully seized when he was "stopped" at the top of the stairs. Barrios contends that this encounter was a seizure within the Fourth Amendment because officers Dolinsky and Healy obviously intended to stop and question him. Concededly, the officers wanted to talk with Barrios about the drug-related homicide that they were investigating, particularly in light of the fact that their primary suspect drove the same black Audi in which Barrios had shown interest.

(collecting cases), cert. denied, 471 U.S. 1125, 105 S.Ct. 2657, 86 L.Ed.2d 274 (1985); United States v. Martinez-Gonzalez, 686 F.2d 93, 101-02 (2d Cir.1982). Hence, the expectation of privacy claim must fail.

The Supreme Court has noted that law enforcement officers do not violate the Fourth Amendment merely by approaching a person in a public place and asking questions. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (plurality); id. at 523 n. 3, 103 S.Ct. at 1338 n. 3 (Rehnquist, J. dissenting) (but concurring in this basic proposition). The test of whether interaction between police and a citizen constitutes a seizure is whether "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). For a mere encounter to be considered a seizure, a substantial showing of force or authority is required. See id.; see also I.N.S. v. Delgado, 466 U.S. 210, 215-16, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984) (holding that unless the encounter is so intimidating that a reasonable person would think he was not free to leave without answering the agent's questions, there is no detention under the Fourth Amendment).

Barrios urges that the totality of the circumstances--Dolinsky's pursuit, his calling out "police", and his request that appellant stop and speak with him--indicates an intent to detain Barrios on only a generalized suspicion. We disagree. No seizure occurred until after Dolinsky viewed the rectangular package; this, in turn, provided the evidentiary justification for detaining Barrios. Moreover, the encounter possessed none of the indicia of force or authority that typically earmarks a Fourth Amendment seizure, such as displaying a firearm, touching the individual, or a tone of voice or language...