U.S.A. v. Ferreras, 97-2101

• Decision Date: 05 August 1999
• Docket Number: No. 97-2101,97-2101
• Citation: 192 F.3d 5
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. DAMIAN FERRERAS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 5

192 F.3d 5 (1st Cir. 1999)

UNITED STATES, Appellee, v. DAMIAN FERRERAS, Defendant, Appellant.

No. 97-2101.

United States Court of Appeals for the First Circuit.

Heard Aug. 5, 1999.

Decided Sept. 15, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Alan Scribner, by appointment of the Court, for appellant.

Zechariah Chafee, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, was on brief, for appellee.

Before Torruella, Chief Judge, Lipez, Circuit Judge, and Fuste,^* District Judge.

TORRUELLA, Chief Judge.

Appellant Damian Ferreras ("Ferreras") was charged with possession with intent to distribute over fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). The district court heard testimony on Ferreras's motion to suppress the physical evidence seized in his apartment and, on the same day, the court denied the motion. Subsequently, the case was tried before a jury and Ferreras was convicted of the sole count on which he was tried. At the sentencing hearing, the government produced testimony that the cocaine base was crack. The district court found that the substance was crack and sentenced Ferreras on that basis. Ferreras was sentenced to 121 months imprisonment and five years of supervised release. As a condition of supervision, Ferreras was ordered to surrender at the completion of his term of imprisonment to the Immigration and Naturalization Service for deportation proceedings. This appeal followed.

BACKGROUND

The following facts were adduced at trial. On February 19, 1997, at 4:30 p.m., detectives from the Providence Police Intelligence Bureau went to the vicinity of 30 Pekin Street, Providence with a search warrant for the second floor apartment at that address. 30 Pekin Street is a three story tenement house. The detectives saw Damian Ferreras's car parked in front of the house. Damian Ferreras came out of a side door of the house and got into the car. The detectives stopped the car down the street and told Ferreras that they had a search warrant for his apartment. An electronic pager was seized from Ferreras and he and his car were brought back to the house.

At the house, a detective used a key from the key ring taken from the ignition of Ferreras's car to open the side door of the building. A team of detectives went to the second floor and searched the bedrooms, kitchen, and bathroom for narcotics. Detectives Edward Leste and David Lussier went up the stairs to the attic where three bedrooms had been constructed. Detective Lussier used a key from Ferreras's key ring to unlock one of the bedroom doors. In a small closet in this bedroom Detective Leste found a pair of high leather boots. From one of the boots he withdrew a clear plastic bag which held 101.74 grams of cocaine base. The detective, who has extensive experience in seizures of crack cocaine, recognized the cocaine base as being the lumpy, rocklike substance known as crack. From the boot he also pulled $1,750 in cash. Searching the room further, the detective found, in a frame for a stereo speaker, an electronic digital scale of a type commonly used to weigh narcotics. On top of the frame the detective found several pieces of personal paperwork bearing the name of Damian Ferreras, including recent court documents. The detectives testified that pagers, quantities of cash, electronic scales, and drugs, taken together, are common elements of drug sales operations.

The bedroom had one bed mattress on a box spring and a young man's clothing in the closet. There was no indication that anyone other than Ferreras stayed in the bedroom. Ferreras was brought to the Providence Police Station where he was escorted to the Intelligence Bureau Office. He was informed of his Miranda warnings in Spanish and English and questioned by Detective Lussier. Ferreras told the detective that the boots found in his closet by Detective Leste had been bought by Ferreras on Canal Street in New York City. He said that the apartment where he was staying belonged to his mother, that he slept in the upstairs bedroom periodically, and that he had last slept in the bedroom two nights previously but had spent the last night at his girlfriend's place. Ferreras went on to say that the money in the boot belonged to him, but that the drugs belonged to another man, for whom Ferreras was holding the drugs. Ferreras said he did not know the name of the other person but could call him on the telephone.

The crack seized from the boot was analyzed at the Rhode Island Drug Chemistry Laboratory and tested positive for the presence of cocaine base. The drugs weighed 101.74 grams (3.58 ounces). The detectives testified from their experience that the value of crack was about $1,000 to $1,200 per ounce and that this quantity of crack was definitely intended for distribution.

Ferreras moved to suppress the physical evidence on grounds that the search of the third floor exceeded the scope of the warrant. The government entered into evidence the search warrant, the complaint, and the affidavit.

The face of the affidavit showed that Detective Edward Leste of the Providence Police Department had information from a reliable informant that Damian Ferreras "is storing and selling cocaine from his apartment located at 30 Pekin Street, 2nd floor apt., and also storing cocaine in the basement . . . ." The affidavit described 30 Pekin Street in Providence as a "2 1/2 story dwelling and being grey with white trim in color."

The affidavit further showed that Detective Leste, within a few days prior to February 19, 1997, had sent an informant into 30 Pekin Street to buy cocaine. The informant came out with cocaine and said that he had bought it from Damian Ferreras while inside the second floor apartment.

On February 19, 1997 a state court judge issued a warrant to search for cocaine, drug sale paraphernalia, and drug money. The search warrant stated:

Place and person to be searched:

30 Pekin Street, 2nd floor apartment and basement

Damian Ferreras, John Doe, dob-2-21-75.

Later that day a Providence Police raid team went to execute the warrant at 30 Pekin Street. Ferreras walked out of the house, got into a car, and drove down the street. He was stopped by the police and brought back to the building he had just left along with a set of keys from the ignition of the car he had been driving. The police used a key from the ring to enter a side door on the ground floor of the building.

Just inside the entrance there was a door leading to the cellar and a flight of stairs up to the second floor. At the top of the stairs was a door with a lock. The door opened into a small hallway on the second floor, and was closed but not locked.

About five feet to the right of the stairway door was a locked door which the police opened with a key from Ferreras's key ring. Through this door, the police entered living quarters on the second floor including a kitchen, two bedrooms, a bathroom, and a living room. About eight feet across the vestibule from the door to the second floor living quarters another set of steps led to the attic. There was no door at the bottom, or at the top of the steps from the second floor hallway to the attic.

In the attic the police saw a hall with three rooms in a row on the left-hand side. These rooms appeared to have been recently constructed and not part of the original building. The first room's door was closed and locked and a detective opened it with another key from Ferreras's key ring. Inside was a box-spring and mattress and a closet full of a man's clothes. Inside a boot the police found the over 100 grams of crack. There was also a television set with a cable leading through a hole in the floor to the second story.

The second room also had a bed and appeared to have been lived in. The third one had only a mattress. The right-hand side of the hallway was divided into two unfinished rooms which were still under construction and revealed plaster, sheetrock, tools, dirty floors, and in one room a metal can of urine. There was no sink, shower, bathtub, kitchen, refrigerator, stove, or pantry, and no running water anywhere in the attic. There was a space heater in one of the attic rooms. The only access to the attic was via the set of steps from the small hallway on the second floor. A detective examined the electric meters on the exterior of the building and found that one was for the first floor apartment, and the other for the second floor. There was none for the attic.

Ferreras called his brother Victor Ferreras who testified that on February 19th there was a door at the foot of the steps leading to the attic, that there was a working sink and toilet in the attic, and that there had been a shower but that he had dismantled it before the date of the raid. Victor Ferreras said that he had been manager of the property and that his brother and another man lived in the attic. He said his mother lived on the second floor but had been away in the Dominican Republic on the day the police entered.

In rebuttal the government entered into evidence the testimony of a defense investigator given at a bail hearing on the case on March 6, 1997. That investigator testified that he had examined the attic just after the police raid and had not seen a bathroom.

The district court found that Victor Ferreras's testimony was not credible. Based on the facts described by the police, the court found that the attic and second floor were all one apartment. He thus found that the search of the attic was within the scope of the search warrant.

At sentencing, Ferreras argued that the substance that was identified by the chemist as cocaine base at trial was not the form of cocaine base known by the street term "crack." The government called as its witness Sargent David Lussier who had served nearly eleven years on the Providence Police force. During his tenure on the force he had been...