U.S. v. Crespo

• Decision Date: 25 November 1987
• Docket Number: D,No. 188,188
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES of America, Appellee, v. Jose CRESPO, Appellant. ocket 87-1204.

Page 267

834 F.2d 267

UNITED STATES of America, Appellee, v. Jose CRESPO, Appellant.

No. 188, Docket 87-1204.

United States Court of Appeals Second Circuit.

Argued Sept. 22, 1987.

Decided Nov. 25, 1987.

Joseph I. Stone, New York City, David A. Elden, Los Angeles, Cal., for appellant.

Charles W. Gerber, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Emily Berger, Asst. U.S. Atty., of counsel), for appellee.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

OAKES, Circuit Judge:

Jose Crespo appeals from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, convicting him after a jury trial of one count of conspiracy to possess cocaine with intent to distribute it, 21 U.S.C. Secs. 841(b)(1)(B), 846 (1982), one count of possession of cocaine with intent to distribute it, 21 U.S.C. Sec. 841(a)(1), (b)(1)(B) (1982), and two counts of intimidating and threatening a person to hinder and prevent communication of information relating to a crime to federal law enforcement officers in violation of 18 U.S.C. Sec. 1512(a)(3) (1982). Crespo was sentenced to four concurrent ten-year terms of imprisonment and also sentenced to special parole for life on the possession count. Appeal is from the denial of a pretrial motion to suppress more than five pounds of cocaine, money, and certain drug-related paraphernalia seized from a closet in appellant's apartment in Queens. Crespo challenges the validity of his warrantless arrest, and contends that because his consent to the search was the result of an illegal arrest, it was neither knowing nor voluntary. We affirm.

FACTS

As testified to at the suppression hearing and found by the trial judge who denied appellant's motion, Maria Polkowski was working as an informant for the United States Drug Enforcement Administration ("DEA") in February, 1986, when appellant Jose Crespo and his brother Gerardo made arrangements to sell her three kilograms of cocaine. The sale did not go through. In July and again in late September, 1986 About 6:00 p.m. on October 1, 1986, four DEA special agents, Spanish-speaking Agent Garcia and Agents Hunt, Geisel, and Grabowski, accompanied the informant Polkowski to the Queens address. Garcia instructed her to knock on all of the doors on the second floor and, if "Jose" answered the door, to ask him why he had been threatening her. The agents concealed themselves on the stairwells and around the corner of the hallway some twenty-five to thirty feet from the door of what they later learned was Crespo's apartment.

Jose Crespo and his brother, having become aware that Polkowski worked as an informant, threatened her and her children at gunpoint. At this time Polkowski knew neither Crespo's address nor even his last name. After the September threat she discovered that Crespo--whom she knew only as "Jose"--lived on the second floor of an apartment building located at 85-05 35th Avenue, Queens, New York.

When Polkowski knocked on the third door, Jose Crespo appeared. Polkowski asked him, "Why are you threatening me? I want you to stop threatening me." In Crespo's response in Spanish, overheard and understood by Agent Garcia, he mentioned the word "killers," and then said, "I have nothing to do with you, but my people will deal with you." As the trial court found, this was a clear threat, if not of immediate physical violence, then of violence in the very near future. At that point the agents had reason to believe that a crime had been committed within their presence under what the trial court termed a "variety of state provisions and probably under 18 U.S.C. Sec. 1512." The federal statute prohibits, inter alia, tampering with a witness or an informant by intentional harassment or threat to dissuade the person from reporting matters to law enforcement officers. ¹ The trial judge found that upon hearing the threats, the agents had the immediate right to arrest Crespo.

As the agents approached, Crespo either slammed the door shut when he saw them or already had closed the door and retreated into his apartment. The agents then knocked on the door and identified themselves as police. Although the agents claimed they merely had their hands on their holstered guns, the court credited the testimony of appellant and his wife, Diana Jiminez, that looking through the peephole in the door, they saw guns in the agents' hands. The court found that this display of weapons, together with the agents' kicking the door, caused the door to be opened by threat of force and not with consent. Nonetheless, because the officers had the immediate right to arrest Crespo, the court held they also had the right to follow him in hot pursuit into the apartment. To have required the agents to get a warrant under the circumstances, particularly where there was a possibility of Crespo's escaping, would have been, the court found, unreasonable.

Once the agents entered the apartment (it is unclear whether Crespo or Jiminez opened the door), Crespo was arrested, handcuffed and given Miranda warnings. Shortly after the agents' entry, Polkowski, followed closely by Jose's brother Gerardo, also came into the apartment. Polkowski then identified Gerardo as the other man who had threatened her and her children, at which point the agents arrested him and advised him of his rights.

The agents next asked Jose Crespo whether he had any guns in the apartment. The trial court found that, following his denial, Crespo voluntarily and in full control of his faculties consented to a search of the premises, as did Jiminez. Within a minute or so, Special Agent Geisel discovered The court below took care to explain how a finding that Crespo and Jiminez voluntarily consented to a search of the apartment was not inconsistent with the previous finding that they had not given consent for the agents to enter the apartment. The trial judge considered Crespo's demeanor, noting his arrogance and self-assurance, and found it was quite likely that Crespo believed the agents would not find the materials hidden in the closet.

a black nylon bag on the top shelf of the living room closet. When opened, the bag was found to contain five and one-half pounds of cocaine, $1,800 in cash, numerous plastic bags, a triple-beam balance scale, and a white pad containing drug records. The agents next searched Jiminez's pocketbook and found in it twenty-eight grams of cocaine, whereupon the agents arrested Jiminez and read her Miranda warnings. Crespo immediately claimed all of the cocaine as his own, and protested his wife's innocence.

DISCUSSION

The Government argues that Crespo's arrest was actually set in motion in a public place, and accordingly, the agents were permitted to enter his apartment in hot pursuit under United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). Unlike the Supreme Court's finding that Santana's standing in her doorway "exposed [her] to public view, speech, hearing, and touch as if she had been standing completely outside her house," 427 U.S. at 42, 96 S.Ct. at 2409, here we have no precise finding as to Crespo's position when he spoke to the informant Polkowski. For all that appears, the door to the apartment was at most half-opened and, indeed, even that degree of exposure was induced by the DEA agents who were seeking to flush Crespo out. We agree in substance with State v. Morse, 125 N.H. 403, 480 A.2d 183 (1984), that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), would apply under such circumstances so as to prohibit the entry into the home.

But we also hold, as did the district court, that this court's decision in United States v. Martinez-Gonzales, 686 F.2d 93, 100-02 (2d Cir.1982), applies. There we noted that even under Payton, entry into a home to make an arrest on probable cause may be justified where exigent circumstances exist. See also United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978). We also there reaffirmed our adoption of factors enumerated by the District of Columbia Circuit Court of Appeals in Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970), as useful guides to determining whether exigent circumstances are present:

These include (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect "is reasonably believed to be armed"; (3) "a clear showing of probable cause ... to believe that the suspect committed the crime"; (4) "strong reason to believe that the suspect is in the premises being entered"; (5) "a likelihood that the suspect will escape if not swiftly apprehended"; and (6) the peaceful circumstances of the entry.

Martinez-Gonzalez, 686 F.2d at 100 (quoting Reed, 572 F.2d at 424). The presence or absence of any one factor is not conclusive; rather, the essential question is whether there was "urgent need" that "ju...