U.S. v. Diaz

• Decision Date: 28 April 1987
• Docket Number: No. 86-1704,86-1704
• Citation: 814 F.2d 454
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel Nicholas DIAZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 454

814 F.2d 454

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Nicholas DIAZ, Defendant-Appellant.

No. 86-1704.

United States Court of Appeals Seventh Circuit.

Argued Oct. 21, 1986.

Decided March 16, 1987.

Rehearing and Rehearing En Banc Denied April 28, 1987.

Terry G. Harn, Peoria, Ill., for defendant-appellant.

Mark D. Stuaan, Asst. U.S. Atty., Peoria, Ill., Gerald D. Fines, U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before POSNER and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

FLAUM, Circuit Judge.

Defendant Manuel Diaz was convicted of five drug-related offenses arising out of his sale of cocaine to an undercover agent. On appeal he argues, among other things, that the police's entry into his hotel room without either a search warrant or an arrest warrant violated the Fourth Amendment. Diaz therefore argues that his arrest was unlawful, and that physical evidence obtained by the police pursuant to their warrantless search should have been suppressed at trial as the fruit of a Fourth Amendment violation. We hold that the entry was lawful, and affirm Diaz's conviction.

I.

In the fall of 1984, Illinois law enforcement officials investigating Diaz's activities enlisted the help of a longtime acquaintance of Diaz named Diana Brown. At the direction of the police, Brown contacted Diaz at a gas station that he owned in Florida, and told him that she "had someone in Chicago that could buy from you." This buyer was in reality Agent John Mueller of the Northeastern Metropolitan Enforcement Group (NEMEG), an organization of state, local and county officers that investigates drug trafficking in Illinois. At a meeting between Brown and Diaz in Miami, and in several subsequent telephone conversations between Diaz and Mueller Diaz agreed to sell Mueller eight kilograms of cocaine at $43,000 per kilogram, for a total of $344,000.

On October 13, 1984, Brown and Diaz met in Chicago and were joined at dinner by Mueller. It was agreed at this dinner meeting that Mueller would come to Diaz's hotel the next morning to complete the transaction. Mueller would test a random sample of the cocaine, and if the results were satisfactory he would then have an hour to get the money to the hotel.

As arranged, Mueller arrived at the Westin Hotel in Rosemont, Illinois at 9:30 a.m. the following day, accompanied by agents from the Federal Drug Enforcement Administration, NEMEG, the Schaumburg Police, and the Rosemont Police. Diaz was staying in Room 809, and two of his confederates (later identified as Oscar Pintos and Ramon Sosa) occupied Room 808, which was adjacent to Room 809. For surveillance purposes, law enforcement agents had occupied Room 818, directly across the hall from Room 809, since about 1:30 p.m. the previous day.

Diaz admitted Agent Mueller to Room 809. Mueller noticed no one else in the room. Diaz left the room for a minute and returned with a cardboard box with open flaps. This box contained eight individually wrapped packages of white powder with yellow tape around them and a ninth package with white masking tape around it. Diaz told Mueller there was a ninth kilo in the box which he would give him on credit. Agent Mueller thanked him, removed one kilo from the box, and conducted a quick chemical test. He told Diaz "it looked good," and informed him he was going to the lobby to call his "money man" who would be there in about 30 minutes. Diaz responded that he would be waiting in his room for Mueller's call that the money had arrived.

Mueller left the hotel room. When the door was shut behind him, he gave a prearranged signal to the agents in Room 818, and then knocked on the door of Room 809 again. Diaz opened the door and Mueller said, "I forgot my keys and coat." Mueller testified that he was then pushed into the room by the surveillance team. Diaz testified, however, that Agent Mueller dropped to the ground at this point and that he, Diaz, bent over him to see what was wrong and was thereupon rushed by the surveillance team.

Agent Steven Livas of NEMEG grabbed Diaz and informed him that they were police officers and Diaz was under arrest. Diaz was walked back over to the bed, laid face down, handcuffed, and advised of his Miranda rights. Agent Livas then returned to the front of the room and observed, on top of the vanity outside the bathroom, a box containing packages of white powder. At this point he told the agents outside the door that there were drugs inside Room 809, and instructed them to arrest the men in Room 808.

Agent Livas then observed a gray flight bag with a brown shopping bag inside it on the floor of the open closet. He testified that both bags were open, and that he "opened the top" and observed bundles of money. He picked this flight bag up and carried it to the bed, where he dumped it out and began to count the money. The money in the bag came to approximately $136,000, and the white powder seized (later definitively identified as cocaine) came to approximately nine kilos.

Diaz was thereafter taken to the Rosemont Police Station where he was interviewed by Richard Levy, a felony prosecutor from the Cook County State's Attorney's office. Levy informed Diaz of his Miranda rights and then began to question him about the cocaine transaction that had just occurred. Diaz made a full confession.

Diaz was charged with five narcotics offenses arising from this incident, and was found guilty of all charges following a jury trial at which the money and the cocaine seized from his hotel room were admitted as evidence. He was sentenced to 25 years in prison without parole on Count I (continuing criminal enterprise); ten years on Count II (conspiracy to possess with intent to distribute and conspiracy to distribute cocaine); five years on Count III (interstate travel to further an unlawful enterprise); ten years on count IV (possession of cocaine with intent to distribute); and ten years on Count V (distribution of cocaine), the sentences on the first four counts to run concurrently. In addition, the court imposed a special parole term of three years on each of counts IV and V, to run concurrently with one another. This appeal followed.

II.

The principal issue in this case is whether the warrantless entry into Diaz's hotel room by law enforcement officers at the time of Diaz's arrest violated the Fourth Amendment. If this second entry was unconstitutional, ¹ then Diaz's arrest was invalid, and the evidence of the money in the flight bag and the cocaine in the box should have been suppressed at trial under the exclusionary rule established to effectuate the Fourth Amendment, see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). We hold that because the second entry was lawful, Diaz's arrest was valid, and the district court's decision not to suppress the evidence of the money and the cocaine was correct. We also reject Diaz's other contentions.

We note initially that we are at a loss to understand why the police did not obtain at least a search warrant in this case. Diaz and his confederates had been under surveillance by law enforcement officers in Room 818 since the day before the arrest, and the officers knew that the purpose of this stay at the hotel was a drug transaction. It therefore would have been possible for the officers to obtain a search warrant for Rooms 808 and 809, and execute it when and if Agent Mueller, having entered Room 808 with Diaz's consent, stepped out into the hall and gave the signal. See United States v. Paul, 808 F.2d 645, 647 (7th Cir.1986). Even after the initial meeting in the hotel room between Diaz and Agent Mueller, there may well have been time to obtain both a search warrant for Diaz's room and a warrant for Diaz's arrest. Diaz had agreed to wait in his room for Agent Mueller to return with the money for the transaction, and Agent Mueller testified at trial that he told Diaz it would be at least a half-hour before he got back. Diaz presented evidence that a magistrate was on call that day, and that a telephone warrant could therefore have been obtained. See Fed.R.Crim.P. 41(c)(2)(A). ² This option might well have been appropriate in light of the facts that Diaz's room was under surveillance and that there was no indication that he had been tipped off to the deception or that any person's life was or might be in danger. Nonetheless, because the police did not in fact obtain a warrant before entering Diaz's room, we must decide whether their warrantless entry violated the Fourth Amendment.

A.

A threshold issue is whether Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), applies to this case. In Payton, the Supreme Court held that 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." 445 U.S. at 576, 100 S.Ct. at 1374. At oral argument, the government suggested that a hotel room secured for the purpose of a drug transaction does not carry with it the same privacy interest as does a suspect's home, and that Payton is therefore inapplicable.

In several cases decided before Payton, the Supreme Court stated that the Fourth Amendment protections against arbitrary search and seizure apply to individuals in hotel rooms as well as in homes. See, e.g., Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964); Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 1220, 8 L.Ed.2d 384 (1962). We do not believe that Payton altered the recognition that "[a] hotel room can be the object of Fourth Amendment protection as much as a home or an office." Hoffa, 385 U.S. at 301, 87 S.Ct. at 413. The doctrine of Payton therefore applies to this case. See United States v. Jones, 696 F.2d 479, 486 (7th Cir.198...