U.S. v. Espinoza

• Decision Date: 21 August 1987
• Docket Number: No. 87-1185,87-1185
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardo ESPINOZA, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 317

826 F.2d 317

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo ESPINOZA, Defendant-Appellant.

No. 87-1185

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 1987.

Robert Ramos, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Janet E. Bauerle, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, GARWOOD, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Espinoza seeks relief from the refusal of the district court to suppress evidence obtained in a police search of his home. We affirm.

On May 6, 1986, El Paso police obtained a warrant for Espinoza's arrest and to search his house for narcotics, based on information from a reliable, confidential informant that Espinoza and his wife were dealing narcotics at that location. Because the house was heavily secured and the police feared that Espinoza would be able to destroy evidence if they attempted to arrest him inside, the police set up surveillance in an attempt to intercept Espinoza outside. On May 7, 1986, the police stopped a car, believed to be Espinoza's, as it left the premises. Finding Espinoza and his wife and her sister inside, they arrested Espinoza and returned to his house.

Upon entering the house, the police noticed a triple-beam scale in the kitchen and several antique guns in a display case in the living room. Suddenly a car pulled into Espinoza's driveway and two men got out and approached the back door of the house. One man, later identified as Crouse, was carrying a chrome-plated shotgun and called out Espinoza's nickname. A police radio inadvertently sounded and the men fled, but they were quickly captured by the police. Officer Apodaca then interviewed Crouse and learned that the shotgun in Crouse's possession was stolen and that he had intended to trade it to Espinoza for narcotics. Crouse also told Apodaca that the other man, Fineron, had recently traded a stolen shotgun to Espinoza for drugs and that the gun was in the house.

At about this time, Detective Pacheco informed Apodaca that he had discovered several guns in a corner of the bedroom. Based on Crouse's statements and their own suspicions, the police confiscated the guns, as well as drug paraphernalia and cash found in the house and eighteen balloons containing heroin and cocaine found on Mrs. Espinoza.

Espinoza was indicted on two counts of knowing and unlawful receipt and possession of the shotgun and two handguns found in the bedroom corner. 18 U.S.C. Secs. 922(h)(1), 924(a); 18 U.S.C.App. II Sec. 1202(a)(1). At a pretrial hearing, the district court denied Espinoza's motion to suppress the guns as the product of an illegal search. Espinoza subsequently pleaded guilty and was sentenced to two years incarceration, conditioned on the right to take this appeal of the suppression ruling.

It is undisputed that the warrant at issue was limited to narcotics, and that the seizure of the guns cannot be justified under the warrant. The government, however, contends that the guns were discovered in plain view during a lawful search of the premises, and were lawfully seized under the plain view exception to the fourth amendment's warrant requirement. This was the basis of the trial court's ruling. Espinoza disagrees.

As enunciated by the Supreme Court in Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502 (1983), a valid "plain view" seizure requires the following:

1. The officer must lawfully make an initial intrusion or otherwise properly be in a position from which he can view a particular area;

2. The officer must discover incriminating evidence "inadvertently," i.e., he may not know in advance the location of certain evidence and intend to seize it under the pretext of the plain view doctrine; and

3. It must be "immediately apparent" to the officers that the items they observe may be evidence of crime, contraband, or otherwise subject to seizure.

Examining each element in turn, we find that the government established a proper plain view seizure.

Proper Initial Intrusion

The guns were discovered during the course of a search for narcotics, and appellant does not challenge the district court's finding that the search warrant and supporting affidavit were legally sufficient for that purpose. As the officers were legally in Espinoza's house, this element is satisfied. See United States v. Whaley, 781 F.2d 417, 419-21 (5th Cir.1986).

Inadvertently Discovered

Espinoza contends that Crouse's statements to the police gave the police prior knowledge that stolen firearms would be found in his house, and thus the guns could not have been inadvertently discovered. We disagree. There is no evidence in the record to suggest that the police had any advance knowledge that there would be stolen firearms in the house and that they were relying on the plain view doctrine only as a pretext for the seizure. Texas v. Brown, 460 U.S. at 733, 103 S.Ct....