U.S. v. Caraza, 86-5548

• Decision Date: 25 April 1988
• Docket Number: No. 86-5548,86-5548
• Parties: 25 Fed. R. Evid. Serv. 857 UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis CARAZA, Orlando Zamora, Jose Yero, a/k/a Coca Cola, Humberto Antonio Becerra, Humberto Forte, Emilio Martinez, Mario DeJesus Martinez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 432

843 F.2d 432

25 Fed. R. Evid. Serv. 857

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis CARAZA, Orlando Zamora, Jose Yero, a/k/a Coca Cola, Humberto Antonio Becerra, Humberto Forte Emilio Martinez, Mario DeJesus Martinez Defendants-Appellants.

No. 86-5548.

United States Court of Appeals Eleventh Circuit.

April 25, 1988.

Carl H. Lida, Miami, Fla., for Caraza.

Jon May, Miami, Fla., for Yero.

Fred A. Schwartz, Entin, Schwartz, Barbakoff & Schwartz, Stephen LeClair, Leon B. Kellner, U.S. Atty, Miami, Fla., Gregory W. Kehoe, Asst. U.S. Atty., Ft. Lauderdale, Fla., Mayra R. Lichter, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for Becerra & Forte.

Samuel I. Burstyn, Steven Taitz, Miami, Fla., for Emilio Martinez.

Theodore J. Sakowitz, Federal Public Defender, Miguel Caridad, Asst. Federal Public Defender, Miami, Fla., for Mario DeJesus Martinez & Zamora.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

Jose Luis Caraza, Orlando Zamora, Jose Yero, Humberto Antonio Becerra, Humberto Forte, Emilio Martinez and Mario DeJesus Martinez appeal from their convictions and sentences in the United States District Court for the Southern District of Florida for violations of federal drug laws. We affirm in part and vacate and remand in part.

On May 28, 1985, Officer Ernest Perez of the Metro-Dade Police Department responded to a "shots fired" report near a house on 106th Avenue Circle, Miami, Florida. While Perez was questioning several residents of the neighborhood to determine the location of the alleged gun shots, a man who identified himself as Castillo emerged from the residence at 990 N.W. 106th Avenue Circle and assured Perez that the "shots" were nothing more than the sound of firecrackers going off inside the house. Castillo then invited Perez inside the residence to view the remains of the firecrackers. After entering the house, Perez saw several scraps of paper on the floor, which Castillo claimed were the remnants of the firecrackers. In the next room, Perez also observed a dish of white powder in plain view that he suspected to be cocaine. Perez then placed Castillo and Alberto Suarez, who was also in the house, under arrest. After Perez called the Narcotics Division of the Organized Crime Bureau ("OCB") to request an agent to test the white powder, an officer who had accompanied Perez on the call conducted a protective sweep of the residence because Perez, who was not convinced by Castillo's firecracker explanation, feared that someone might have been wounded in the house. During this security sweep, the officer observed several kilogram wrappings, which are used for packaging cocaine.

A short time later, OCB Officer Helms arrived to test the white powder. The substance was verified as cocaine. The uniformed officer who had conducted the security search advised Helms that kilogram cocaine wrappers were in the master bedroom, and Helms seized them. Relying on the kilogram wrappers and the cocaine found in the house, Helms then obtained a search warrant for the residence. During this search, officers seized approximately $1,600,000.00 in currency, ten ounces of cocaine, firearms and jewelry and documents that identified the owner of the residence as Jose Yero, one of the appellants.

Shortly before the incident at 990 N.W. 106th Avenue Circle, the Drug Enforcement Administration ("DEA") and the Palm Beach County Sheriff's Office had commenced an independent investigation that entailed the surveillance of homes located at 12404 Coconut Road and 12084 Edgewater Drive in Palm Beach County, Florida. The surveillance continued until June 27, 1985. Throughout this period, law enforcement agents observed a 26-foot Roballo fishing vessel docked behind the Edgewater Drive residence.

In late June, 1985, Rene Rodriguez and Mario DeJesus Martinez traveled to Nassau, Bahamas on the vessel, the KING AND I, which was captained by Thomas Arnold. While in the Bahamas, they met Becerra, Alberto Suarez and Caraza. The KING AND I then transported Rodriguez, Mario DeJesus Martinez, Becerra and Jorge Brito to Little Whale Cay. After docking at Little Whale Cay, all on board the KING AND I, except Arnold and Mario DeJesus Martinez, went ashore. Once ashore, Rodriguez, Becerra and Brito then transferred duffel bags containing cocaine from the beach to a small fishing boat, which ferried the cocaine out to THE CONNECTION, a racing vessel which at that time was piloted by Suarez and Caraza. During the early morning of June 27, 1985, the KING AND I escorted THE CONNECTION back to Palm Beach County, Florida and then returned to the Sunny Isles Marina, where it was boarded by an officer from the Customs Bureau.

At about 4:00 a.m. on June 27, 1985, the agents who were watching the Edgewater Drive residence noticed that the Roballo fishing boat was gone and that the lights in the house were out. About half an hour later, DEA Agent Osleber watched THE CONNECTION dock at the Coconut Grove residence. The Roballo fishing vessel soon appeared near THE CONNECTION, with Yero and Caraza on board. Yero waved to one of the people standing on the dock and then directed the Roballo back to the Edgewater Drive house.

Meanwhile, Forte, Suarez, Emilio Martinez and Zamora unloaded the duffel bags containing cocaine and put them in the Coconut Road dwelling. At about 6:00 a.m., Forte, Zamora, Victor Zapata and a friend of Zapata's left the Coconut Road house in an automobile. DEA Agent Osleber stopped the car and arrested them. A short time later, law enforcement officers arrested Suarez and Emilio Martinez on board THE CONNECTION; Yero and Caraza were apprehended simultaneously at the Edgewater Drive address. Approximately sixteen hundred pounds of cocaine were seized as a result of this investigation.

Caraza, Yero, Emilio Martinez, Zamora, Forte, Becerra, Mario DeJesus Martinez and seven others were named in a four-count indictment filed in the United States District Court for the Southern District of Florida. The indictment charged the defendants with conspiracy to import cocaine in violation of 21 U.S.C. Sec. 963 (Count I); importation of cocaine in violation of 21 U.S.C. Secs. 952(a), 960(a) and 18 U.S.C. Sec. 2 (Count II); conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 (Count III); and possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count IV). Judge Mishler ¹ presided over the trial that resulted in the convictions of Yero, Emilio Martinez, Zamora and Becerra on all counts. The jury found Forte, Caraza and Mario DeJesus Martinez guilty of Counts I and II, but acquitted them on Counts III and IV.

Judge James C. Paine sentenced the defendants even though he did not preside over the trial. ² After considering the evidence presented at the hearing, Judge Paine sentenced Yero to forty-five years incarceration with no parole until he had served fifteen years and fined him $750,000.00. Becerra received a forty-year sentence and a $40,000.00 fine. The court sentenced Forte to eighteen years imprisonment, Emilio Martinez to fifteen years incarceration, Zamora to ten years and Caraza and Mario DeJesus Martinez to three years each.

Yero first assigns error on the district court's refusal to suppress the evidence obtained during the search of the house located at 990 N.W. 106th Avenue Circle in Miami. Although Metro-Dade police obtained this evidence pursuant to a search warrant, Yero insists that the information supplied in the affidavit to support the warrant was obtained illegally. Specifically, he claims that the protective sweep that followed the arrests of Suarez and Castillo was merely a pretextual search for more drugs.

A lawful arrest inside a home does not give the police license to search the entire residence for evidence. United States v. Satterfield, 743 F.2d 827, 845 (11th Cir.1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985). The law is clear, however, that police officers, who lawfully apprehend a suspect and reasonably believe that delay in searching the premises would endanger their lives or the lives of others, may conduct a security sweep. See e.g., United States v. Burgos, 720 F.2d 1520, 1526 (11th Cir.1983). If officers spot evidence in plain view during such a protective sweep, they may seize it. United States v. Standridge, 810 F.2d 1034, 1038 (11th Cir.1987), cert. denied, --- U.S. ----, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987).

Given the circumstances of this case, Yero contends that the record cannot support the conclusion that Perez reasonably believed that the officers or others would have been in danger absent a protective sweep. At oral argument, he emphasized the failure of the police to conduct the search immediately after the arrests of Castillo and Suarez as an indication that the officers did fear for their safety or for the safety of anyone else.

Our reading of the record leads to a different conclusion. First, the delay between the arrests and the security sweep was minimal. Perez placed Castillo and Suarez under arrest, called OCB to request a field test of the white powder, and, immediately thereafter, another uniformed officer on the scene conducted the sweep search. Because the residence was a two-story structure, the arresting officers could not be certain whether others were in the house who might either pose a threat to the officers or need assistance. Furthermore, Perez also testified that, despite the remains of the firecrackers, he was not convinced gun shots had not been fired. Under these circumstances, we hold that the investigating officers reasonably believed that harm might have come to them or someone who may have been wounded upstairs. Thus, the security sweep was proper, and the kilogram wrappers...