U.S. v. Diaz

• Decision Date: 19 July 2007
• Docket Number: No. 05-1990.,05-1990.
• Citation: 494 F.3d 221
• Parties: UNITED STATES of America, Appellee, v. Carlos DIAZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

494 F.3d 221

UNITED STATES of America, Appellee, v. Carlos DIAZ, Defendant, Appellant.

No. 05-1990.

United States Court of Appeals, First Circuit.

Heard February 6, 2007.

Decided July 19, 2007.

Leslie W. O'Brien for appellant.

Andrew E. Lelling, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Carlos Diaz appeals his conviction on charges of possessing and conspiring to distribute the controlled drug ecstasy. Diaz claims that (1) the district court should have suppressed evidence gleaned from the warrantless seizure of his cell phone, and (2) unexpected testimony by a government witness that Diaz had illegally entered the United States necessitated a mistrial. We affirm.

I.

Just after midnight on October 16, 2001, three agents of the Drug Enforcement Agency, accompanied by uniformed officers from the local police department, arrived at an apartment in Lynn, Massachusetts. The officers were led there by Ellis Martinez, who had been arrested earlier that night for selling five hundred ecstasy tablets to an undercover DEA agent, Todd Prough. Martinez said he had acquired the tablets at the apartment that day from a man known to him as "Memello." Martinez further recounted that he had not paid Memello for the ecstasy, but had received it "on consignment," meaning that he was expected to sell it and repay Memello out of the proceeds that same night. Martinez also provided Prough with a brief physical description of both Memello and his vehicle, a gold Honda.

During Martinez's interrogation, his cell phone continually rang, displaying a number he had previously identified as Memello's. Eventually, Prough and the other officers conducting the interrogation instructed Martinez to answer one of Memello's calls, which Prough monitored and recorded. In this call, Martinez claimed to have the money to repay Memello, and promised to deliver it to him shortly. Prough, joined by other law enforcement personnel, then proceeded to Memello's apartment to arrest him. Prough later explained that he did not seek an arrest warrant due to the difficulty of contacting a magistrate at the late hour and out of a concern that the attendant delay would arouse Memello's suspicions as to Martinez's whereabouts, causing Memello to destroy evidence or to flee.

The officers approached the apartment, located on the second-floor of a multifamily house, by way of a back staircase. A gold Honda was parked outside. The officers' badges were visible, but their weapons were not drawn. One of the local officers knocked on the door. When a woman opened it, the officer identified his group as the police and asked to come in and talk to her. The woman, later identified as Diaz's wife, Amanda Burgos, responded by moving away from the door and gesturing to the officers to enter.

Once inside the apartment, Prough observed a man sitting in the kitchen and asked him for his name. The man identified himself as Carlos Diaz. Prough recognized him as Memello from his appearance, which fit the description provided by Martinez, and his voice, which Prough had heard while listening to their cell phone conversation. Diaz was arrested and removed from the apartment.

Prough then asked Burgos whether the apartment contained any weapons or drugs; she said no. He asked her for permission to search the apartment; she said yes. While another officer was leaving the apartment to obtain a form for Burgos to sign to consent to the search, Prough noticed a cell phone on the coffee table in front of her. Burgos indicated, in response to an inquiry from Prough, that the phone belonged to her husband, Diaz. Prough determined that the phone was the same one that had been used to place the call to Martinez earlier that evening.¹ Prough then seized the phone. After Burgos signed the consent form, another DEA agent, Michael O'Shaughnessy, examined the phone and determined that it had been used to place a call to Martinez minutes before the authorities arrived at the apartment that night.

Diaz was transported to the police station in Woburn, Massachusetts, where he was advised of and waived his Miranda rights. When Prough told Diaz that he had been arrested for trafficking in ecstasy, Diaz remarked, "What a mess I got myself into. You got me for being a fool." He proceeded to explain that he had entered the United States illegally some fifteen years prior. Under further interrogation from Prough, Diaz admitted that he served as a middleman between buyers and sellers of ecstasy, funneling approximately 1,000 tablets each week to Martinez and his principal, Tomas Cubilette. Diaz further confessed to providing Martinez with the five hundred ecstasy tablets he had sold to Prough that day. Diaz's confession was not video- or tape-recorded, however, and he was never asked to put it in writing.

Before trial, Diaz moved to suppress the evidence seized from the apartment and his confession as the fruits of an illegal warrantless entry and arrest. The district court denied the motion in a written memorandum and order issued after an evidentiary hearing. The court ruled that (1) Burgos voluntarily gave her consent to the officers' entry into the apartment, (2) the officers had probable cause to arrest Diaz on sight, and (3) the cell phone was lawfully seized under the "plain view" exception, see Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).²

At trial, Prough served as the government's principal witness against Diaz, relating the substance of his confession as well as the aforementioned events of the night of October 15. The government also submitted toll records showing multiple calls between Martinez's cell phone and Diaz's cell phone prior to Diaz's arrest that night, and similar activity on a number of previous occasions when Prough had purchased, or attempted to purchase, ecstasy from Martinez. Diaz's cell phone was also introduced into evidence, accompanied by testimony from O'Shaughnessy as to the call from the phone to Martinez just before the authorities arrived at Diaz's apartment.

In describing Diaz's confession, Prough testified that Diaz had admitted to entering the United States illegally. Diaz immediately made an objection, which the district court sustained.³ At the end of that day of trial, Diaz moved for a mistrial on the basis of this testimony, which he characterized as irrelevant and prejudicial. Though the government opposed the motion, it took "full responsibility" for Prough's testimony: the prosecutor acknowledged that he could not recall whether he had instructed Prough not to mention Diaz's immigration status, despite assuring defense counsel before trial that he would do so.⁴

The district court denied the motion, concluding that the testimony would not "materially affect" the outcome of the trial, but offered to instruct the jury to disregard it. Diaz, however, did not take the court up on its offer, believing that an instruction would only highlight Prough's statement. The jury convicted Diaz on both the possession and conspiracy charges.

II.

A.

Diaz appeals from the denial of his motion to suppress his cell phone as the spoils of an unconstitutional warrantless entry and seizure. He does not, however, separately question the district court's conclusion that the officers had probable cause to arrest him and that his confession was therefore legally obtained. In passing on a district court's decision on a motion to suppress, we scrutinize rulings of law de novo, but review findings of fact for clear error only. E.g., United States v. McCarty, 475 F.3d 39, 43 (1st Cir.2007).

The Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Nevertheless, "[t]he Fourth Amendment recognizes a valid warrantless entry . . . when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained." Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1518, 164 L.Ed.2d 208 (2006). When faced with such an objection, the government has the burden to show by a preponderance of the evidence that the consent was voluntarily given. United States v. Marshall, 348 F.3d 281, 285-86 (1st Cir.2003).

The district court found that Diaz's wife, Burgos, had voluntarily consented to the arresting officers' entry into the apartment. Diaz does not challenge this result per se. Instead, he contends that the district court erroneously placed the burden on him to prove that Burgos did not consent. He bases this charge on a statement in the court's order on the motion to suppress:

The problem in this case is that only one version of what happened at the threshold of the door to the Burgos-Diaz apartment was presented to me—that of [Special Agent] Prough. Burgos did not testify. And while parts of the Prough testimony troubled me, I have no basis to conclude that Burgos' consent was not `freely given' within the meaning of the law.

We do not read this statement as placing the burden of proving voluntary consent on Diaz. Rather, the passage expresses the court's conclusion that Prough's testimony, despite its faults, sufficed to satisfy...