U.S. v. Flores

• Decision Date: 14 July 1976
• Docket Number: D,75-3440,Nos. 75-3439,GONZALEZ-ESPARZ,s. 75-3439
• Citation: 540 F.2d 432
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcela FLORES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Felipeefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 432

540 F.2d 432

UNITED STATES of America, Plaintiff-Appellee, v. Marcela FLORES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Felipe GONZALEZ-ESPARZA, Defendant-Appellant.

Nos. 75-3439, 75-3440.

United States Court of Appeals, Ninth Circuit.

July 14, 1976.

Barrett S. Litt (argued), Los Angeles, Cal., for appellant in 75-3440.

Barbara Meiers, Asst. U.S. Atty. (argued in 75-3440 and appeared in 75-3439), Los Angeles, Cal., for appellee.

Howard W. Gillingham, North Hollywood, Cal., for appellant in 75-3439.

OPINION

Before KENNEDY and SNEED, Circuit Judges, and CONTI, ^* District Judge.

PER CURIAM:

These cases have been consolidated for purposes of appeal. Both appellants appeal from their convictions in the Central District of California for the following offenses: one count of conspiracy to possess and distribute a narcotic drug (21 U.S.C. § 846); two counts of possession with intent to distribute heroin (21 U.S.C. § 841(a)(17)); and two counts of distribution of heroin (21 U.S.C. § 841(a)(11)). Appellants were convicted pursuant to a court trial.

Several motions were filed by appellants during the course of the proceedings in the trial court, including (1) a motion to suppress evidence, (2) a motion for the admission of polygraph test results, (3) a motion for discovery, and (4) a motion for reduction of sentence. Appellants' appeal is based on the District Court's denial of these motions.

In announcing the conviction of the appellants the District Court Judge stated that he believed the testimony of the government's witnesses and that he was particularly impressed with the credibility of the prosecution's chief witness, a police informant named Ernesto Navarro. The Judge further stated that he disbelieved the testimony of the defense witnesses.

The informant Navarro testified that he and another informant named Jesus were standing on the corner of Brooklyn Avenue and Matthew Street in Los Angeles on May 23, 1975, at approximately 8:30 p.m. They were approached by Carlos Duarte, a co-defendant in the instant case, who was acquainted with Jesus. The three discussed the possible sale of narcotics by Duarte to Navarro. An agreement was reached that Duarte should bring a sample to Navarro for inspection at a nearby parking lot. This initial contact was observed by agents of the Drug Enforcement Administration.

When Duarte drove away, he was followed by Agent Keller of the DEA. Agent Keller testified that Duarte drove to 2212 Gates Street in Los Angeles, the address of appellants. Duarte entered the house, returned to his car a few minutes later, and drove back to the parking lot where he was met by Navarro and Jesus. Navarro inspected a sample of heroin given to him by Duarte, and arrangements were made for Duarte to contact Navarro by telephone regarding the sale of approximately one pound of heroin.

Duarte telephoned Navarro on May 27, 1975, setting up a sale of heroin on the following day. On May 28, between five and six o'clock in the afternoon, Navarro contacted Duarte by telephone. This conversation was recorded by the government. In this conversation Duarte stated that he would call his contact to arrange the transaction. Following the telephone conversation Navarro proceeded to Duarte's residence accompanied by Agent Keller who was holding the money intended to be used to purchase the heroin. Navarro entered the house. After discussing the question of money with Duarte, both men went out to Agent Keller waiting in the automobile. He showed Duarte approximately $12,000. They returned to the house. Duarte made a phone call in which he said that everything was ready and that the money was there. A few minutes after hanging up, Duarte received another phone call and after that conversation they left the residence. The three men proceeded to the Gates Street address where appellants resided.

The testimony at trial was sharply in conflict regarding what took place at the Gates Street residence on the evening of May 28, 1975. According to the informant Navarro, he and Duarte went into the house while Agent Keller waited in the truck. The door was opened by appellant Gonzalez-Esparza who invited them to sit on the sofa in the livingroom. Also present were appellant Marcela Flores, Gonzalez-Esparza's wife, and a juvenile, Pedro Barrajas. According to Navarro, appellant Flores obtained from the utility room a four-inch high package of a substance alleged to be heroin. The package was weighed on a set of triple beam scales in the kitchen and totalled four hundred fifteen grams. A discussion of money followed. Navarro stated that he had left the money in the truck with his partner. He and Duarte left to get the money while the others waited at the front door. When the two men reached the sidewalk and turned left, Navarro removed his coat. This was a pre-arranged signal that contraband was present in the house.

At this point, federal agents converged on the house. Agent Tucker stated that he observed several people on the porch and that he announced to them that he and his companions were federal agents. The persons on the porch turned and ran into the house, slamming the door behind them. The agents knocked on the door and announced their presence and purpose. When they were refused admittance, they broke into the house. Appellant Gonzalez-Esparza was arrested in the doorway between the livingroom and the kitchen. Pedro Barrajas was apprehended while trying to escape through the back door. The agents found the bathroom door locked. One of the agents heard the sound of running water. The agents announced their presence and after waiting about thirty seconds forced the bathroom door open. Appellant Flores emerged from the bathroom with a smile on her face.

Appellant Gonzalez-Esparza, as well as the juvenile Barrajas, were handcuffed and placed on the kitchen floor. Within a few feet of appellant and in plain view, one of the agents noticed a small cellophane package containing a substance later identified as heroin. This package weighed about twenty-seven grams. Gonzalez-Esparza, Flores, Barrajas, and Duarte, were all taken into custody.

A subsequent search of the residence conducted pursuant to a warrant issued on May 29, 1975, revealed no other controlled substances. However, a balance scale, allegedly used to measure heroin, and a one-pound bottle of lactose, allegedly used to dilute heroin, were seized.

There are four issues on appeal:

(1) Whether appellants' motion for suppression of the evidence seized at their residence was properly denied;

(2) Whether appellants' motion to admit into evidence the results of a polygraph examination was properly denied;

(3) Whether appellants' motion that the government be required to provide the case names and numbers of those cases in which the informant Navarro had previously testified was properly denied; and

(4) Whether the trial court's sentencing of appellant Gonzalez-Esparza to three years in prison, while sentencing his wife Marcela Flores to probation is a violation of the Equal Protection Clause of the 14th Amendment.

(1) Search and Seizure:

The trial court denied appellants' motion to suppress the evidence seized at their residence by the federal agents for the reason that the entry was made in "hot pursuit". The court accepted the testimony of the drug agents to the effect that (a) they identified themselves to the appellants who were standing in the agents' view with the door to their house open; (b) they ordered appellants to stand still; and (c) appellants ran into their house and slammed the door behind them.

The agents further testified that they then ran on to the porch of the house, knocked at the front door, announced their identities, and forced entry. One agent testified that they waited approximately 15 seconds before forcing entry. The trial judge accepted this testimony but stated that he did not believe that the agents had waited before entering. This is a factual determination based upon the trier of facts' weighing of the testimony of the agents. It will not be reviewed on appeal in the absence of abuse. Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The only issue for decision here is whether compliance with the so-called knock and announce statute, 18 U.S.C. § 3109, by federal agents before forcing entry into a dwelling vitiates a search as one made in "hot pursuit".

18 U.S.C. § 3109 provides that a police officer may break open any outer or inner door of a house to execute a search warrant, if, after giving notice of his authority and purpose, he is refused admittance. This statute also applies to entries for the purpose of arrest without an arrest warrant. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). However, entry in "hot pursuit" has always been considered an exception to the knock and announce provisions of this section. United States v. Bustamonte-Gamez, 488 F.2d 4 (9th Cir. 1973); United States v. Chambers,382 F.2d 910 (9th Cir. 1967); McClure v. United States, 332 F.2d 19 (9th Cir. 1964); William v. United States, 273 F.2d 781 (9th Cir. 1959).

Moreover, when the circumstances warrant an entry in "hot pursuit" the fact that the entry is accompanied by an announcement of authority does not preclude the application of the "hot pursuit" doctrine. In United States v. Cisneros, 448 F.2d 298 (9th Cir. 1971), appellant was convicted of importation and sale of heroin. Undercover federal agents accompanied an individual named Thomas to appellant Cisneros' residence for the purpose of completing a heroin transaction with Thomas' connection. Thomas entered the dwelling and subsequently emerged with Cisneros. The undercover agents gave Thomas $700 and Thomas gave them 30.02 grams of heroin. Thomas and Cisneros returned to the residence. The undercover agents radioed to other agents that a heroin buy had taken place and instructed them to...