U.S. v. Cuaron, 81-1970

• Decision Date: 14 February 1983
• Docket Number: No. 81-1970,81-1970
• Citation: 700 F.2d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Armando CUARON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 582

700 F.2d 582

UNITED STATES of America, Plaintiff-Appellee, v. Frank Armando CUARON, Defendant-Appellant.

No. 81-1970.

United States Court of Appeals Tenth Circuit.

Feb. 14, 1983.

Jonathan L. Olom of Marks & Olom, Denver, Colo., for defendant-appellant.

Brian G. McConaty, Sp. Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., with him on brief), for plaintiff-appellee.

Before HOLLOWAY and SEYMOUR, Circuit Judges, and KELLY, ^* District Judge.

SEYMOUR, Circuit Judge.

Frank Cuaron was convicted on two counts of knowingly and intentionally distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1976) ¹ and 18 U.S.C. Sec. 2 (1976), ² on a third count of conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1976), ³ and on a fourth count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1). On appeal, Cuaron argues that evidence found by officers both in the initial warrantless search of his residence and in the subsequent search pursuant to a warrant should have been suppressed. We disagree with Cuaron and affirm the convictions.

I. BACKGROUND

Cuaron's arrest stemmed from the combined investigative activities of Drug Enforcement Administration (DEA) agents and police officers from the cities of Boulder and Greeley, Colorado. The indictment charged Cuaron and co-conspirators Jon and William Neet and David Van Omen. Cuaron elected to waive his right to a jury trial and submitted his case to the district court on the record of the suppression hearing, a set of stipulated facts and exhibits, and the additional testimony of Jon Neet, who previously had pled guilty to one count of cocaine distribution.

As agreed in earlier negotiations for the purchase of cocaine, two undercover DEA agents met Jon and William Neet at the Boulder Inn at 11:45 a.m. on October 6, 1980. The Neets delivered approximately four ounces of cocaine to the DEA agents and received $8,000 cash in return. Jon Neet testified at trial that he had obtained this cocaine from Cuaron and had agreed to sell it for him.

Jon Neet told the agents at the Boulder Inn that he would be meeting with his drug supplier shortly thereafter. He also said that his source had obtained three kilograms (about six and one-half pounds) of cocaine the night before, and that one kilogram had already been sold. The agents negotiated with Jon for the purchase and delivery of two additional pounds of cocaine. Jon explained that he could probably get only one pound of cocaine at a time from his supplier, but that if he returned to the supplier with the money he could obtain a second pound to sell. The Neets and the DEA agents agreed that William Neet and the agents would wait in their separate rooms at the Inn while Jon went to his supplier to acquire the cocaine. Jon explained to the agents that he would take a circuitous route to his supplier's location to ensure he was not followed. Jon also told them it was vitally important that he not reveal his supplier's identity because the supplier was a "family man" with a reputation to protect.

Before Jon left the Inn, officers attached an electronic tracking device to his car. The surveillance agents followed Jon to a shopping center where they lost contact with him for approximately ten minutes. Thereafter, using electronic tracking, the agents traced Jon's car to a single-family residence at 6968 Sweetwater Court in Boulder County, later identified as Cuaron's house.

At approximately 12:30 p.m., shortly after the agents observed Jon's car at Cuaron's residence, William Neet told the DEA agents at the Boulder Inn that he had just received a telephone call from Jon who said he was at the supplier's house. Cuaron's house was then placed under surveillance. At 1:00 p.m. Van Omen entered the Cuaron house carrying a briefcase. Jon testified that while at Cuaron's house, he and Cuaron discussed making an additional cocaine sale to the same purchaser. They agreed that Jon would sell a pound of cocaine for $32,000 and immediately return the money to Cuaron upon completion of the sale.

The agents followed Jon when he left Cuaron's house at 1:35 p.m. and returned by a circuitous route to the Boulder Inn. Shortly before 2:00 p.m., Jon delivered the pound of cocaine to the DEA agents at the Inn. Jon and William Neet were promptly arrested, and the agents immediately began efforts to obtain a warrant from state court to search the residence from which the cocaine had come. Surveillance of Cuaron's residence was continued. About forty minutes after the Neets were arrested, a decision was made to secure the residence without waiting for a search warrant. At 2:55 p.m., two DEA agents and a Boulder police officer went to the front door of the house. The door was ajar. An officer pushed it wide open, identified himself as a law enforcement officer, and entered the residence. Other officers then followed.

Upon entry, one of the DEA agents looked up the stairway to the second floor and noticed Van Omen at the top of the stairs. Van Omen nodded or turned his head toward a room on the second floor with its door slightly open. The door was shut immediately. The DEA agent drew his handgun, ran up the stairway, and entered the room. He found Cuaron trying to flush a substantial amount of white powder down the toilet. This substance was later identified as cocaine. The agent seized additional cocaine which he found lying in plain view on top of a dresser.

Cuaron and others in the house were detained in the living room. The officers secured the house and waited for a search warrant, which arrived four hours later at about 7:00 p.m. During the subsequent search, more cocaine and narcotics paraphernalia were found in the house.

II. CONCURRENT SENTENCE DOCTRINE

Cuaron was sentenced to concurrent four-and-a-half-year terms of imprisonment under each of the four counts. The Government argues that the evidence obtained from searching the residence relates only to Count IV and that we should therefore affirm, applying the concurrent sentence doctrine. We decline to apply the doctrine and will address the suppression issues on the merits. See United States v. Montoya, 676 F.2d 428, 431-33 (10th Cir.1982).

III. EXIGENT CIRCUMSTANCES AND WARRANTLESS ENTRY

Cuaron contends the trial court should have granted his motion to suppress because the warrantless search of the residence and seizure of certain items therein violated the Fourth Amendment. The crux of this assertion is that the police officers were not justified by "exigent circumstances" in foregoing the normal warrant requirement.

"It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). Nevertheless, a warrantless entry for some limited purposes is permissible if police officers have probable cause to search the residence and exigent circumstances are present. United States v. Erb, 596 F.2d 412, 417, 419 (10th Cir.), cert. denied, 444 U.S. 848, 100 S.Ct. 97, 62 L.Ed.2d 63 (1979). Cuaron does not contend that probable cause was lacking in this case. Consequently, the only issue on appeal is whether exigent circumstances existed to permit the premises and individuals to be secured pending receipt of a search warrant.

The Government has the burden of establishing that exigent circumstances made the warrantless entry necessary. United States v. Baca, 417 F.2d 103, 106 (10th Cir.1969), cert. denied, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). In assessing whether the burden was met, we are "guided 'by the realities of the situation presented by the record.' " United States v. McEachin, 670 F.2d 1139, 1144 (D.C.Cir.1981) (quoting United States v. Robinson, 533 F.2d 578, 581 (D.C.Cir.1976) (en banc)). We should "evaluate the circumstances as they would have appeared to prudent, cautious and trained officers." Erb, 596 F.2d at 419 (citing United States v. Brown, 540 F.2d 1048, 1055 (10th Cir.1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 548 (1977)).

When officers have reason to believe that criminal evidence may be destroyed, id. at 417-18, or removed, McEachin, 670 F.2d at 1144-45, before a warrant can be obtained, the circumstances are considered sufficiently critical to permit officers to enter a private residence in order to secure the evidence while a warrant is sought. ⁴ Cuaron argues, however, that no objective basis was present in this case for the police to believe criminal evidence was about to be destroyed or removed. He also contends that in any event the police had sufficient time to obtain a federal search warrant by telephone.

At the time the police and the DEA agents made the decision to secure the house prior to obtaining a search warrant, they were aware of the following facts: 1) after delivering the four-ounce sample of cocaine to the agents, Jon Neet had immediately returned to his supplier to deliver the $8,000 and pick up an additional pound of cocaine; 2) Jon called his brother from the supplier's house to report his arrival there; 3) the time necessary to travel round trip between the supplier's residence and the Boulder Inn, driving circuitously, was less than an hour; 4) after Jon delivered the pound of cocaine and received $32,000 for it, the plan was for him to return to the supplier to obtain an additional pound of cocaine to sell to the same purchaser. In addition, the officers knew that three kilograms of cocaine had arrived at the supplier's house the previous evening, that one kilogram had already been sold, and that the supplier wanted to sell it all as soon as possible. During the hour between Jon's arrest and the officers' entry of the house two vehicles arrived at the residence and two individuals left in other vehicles. The officers were also aware that the...