U.S. v. Genao, 00-2191.

• Decision Date: 27 February 2002
• Docket Number: No. 00-2191.,00-2191.
• Parties: UNITED STATES of America, Appellee, v. Jose GENAO, a/k/a Evaristo Martinez, a/k/a Luis Torres Sandria, a/k/a Luis Sanabria, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

281 F.3d 305

UNITED STATES of America, Appellee, v. Jose GENAO, a/k/a Evaristo Martinez, a/k/a Luis Torres Sandria, a/k/a Luis Sanabria, Defendant, Appellant.

No. 00-2191.

United States Court of Appeals, First Circuit.

Submitted July 11, 2001.

Decided February 27, 2002.

COPYRIGHT MATERIAL OMITTED

Martin I. Flax on brief for appellant.

Margaret E. Curran, United States Attorney, Donald C. Lockhart and Stephanie S. Browne, Assistant United States Attorneys, on brief, for appellee.

Before SELYA, Circuit Judge, GIBSON,^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

GIBSON, Senior Circuit Judge.

Searching for drugs with a warrant, Rhode Island police officers found only empty glassine paper packets in Jose Genao's second-floor apartment. Genao signed a consent-to-search form that included the vacant apartment on the third floor. When the police searched that apartment, they discovered 57 packets of heroin and a gun. Genao now appeals from his ensuing convictions for possessing heroin with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (1994), and being a felon in possession of ammunition and of a firearm, each in violation of 18 U.S.C. § 922(g)(1) (1994).¹ Genao first disputes the district court's² denial of his motion to suppress the confessions and the physical evidence seized from the apartments. He claims that the affidavit the officers used to obtain the search warrant failed to show probable cause; that the physical evidence seized from the third-floor apartment was taken without his knowing and voluntary consent to the search; and that his confessions were obtained in violation of the Fifth Amendment. Secondly, Genao argues that the district court abused its discretion when it denied his pro se motion to replace his appointed counsel without inquiring sufficiently into Genao's grounds for dissatisfaction. We affirm the convictions.

The investigation that led to the search began when police received a tip from a confidential informant that Migdalia Ortiz (Genao's wife) was selling heroin out of a second-floor apartment at 14 Benedict Street in Providence. The police learned that Migdalia Ortiz had previously been arrested for drug offenses. The telephone number at the apartment was assigned to "Jose Ortiz." The police arranged for the informant to make a controlled purchase of heroin at the Ortiz apartment. They obeyed several common formalities for such a procedure: searching the informant to make sure that he had no contraband prior to the purchase, watching him enter the building and leave it, then inspecting the substance turned over by the informant after leaving the apartment. In a field test, the substance tested positive for heroin.

The police prepared a search warrant affidavit reciting essentially the above facts. They obtained a warrant to search the second-floor apartment and the couple for heroin or drug paraphernalia.

A team of eight to ten officers, accompanied by a police dog, executed the search. In the second-floor apartment, the police found a brown box with hundreds of empty glassine packages of a sort commonly used to store drugs. The officers also noticed an open door leading to a third-floor apartment. When asked whether the third-floor apartment was occupied, Genao replied that it was vacant, but that he had a key to it and was functioning as the landlord. This conversation was conducted in English. Genao produced the key and demonstrated it to the officers. At the officers' request, Genao and Ortiz each signed a consent form written in English and Spanish (apparently Genao's first language) that authorized the police to enter the third-floor apartment, the second-floor apartment, and the basement.

In the upstairs apartment, the police seized 57 glassine packets of heroin, a scale, coffee grinders, a sifter, a scoop, packaging material, and two handguns with ammunition. The heroin was in a black bag, concealed from view atop a cabinet in the third-floor kitchen. The handguns and ammunition were hidden in a compartment built into one of the kitchen walls. There was no furniture or food in the upstairs apartment, nor any other signs that it was occupied.

After the items were seized, Detective Kevin O'Brien returned to the second floor. O'Brien showed Genao the seized items and said, "We've got a problem here." Before O'Brien could say anything else, Genao stated in English: "Everything's mine. I don't want my wife to get in trouble." O'Brien interrupted Genao and told him not to say anything until he was advised of his rights. After this, O'Brien gave Genao his Miranda rights in English, Genao stated that he understood them. Genao then repeated his statement that everything was his and that he did not want to get his wife in trouble.

I.

Genao argues that the affidavit underpinning the warrant was too weak to authorize the police to enter and search the second-floor apartment. We review de novo the district court's holding that probable cause existed for the search. United States v. Sawyer, 144 F.3d 191, 193 (1st Cir.1998). At the same time, we review deferentially the issuing court's assessment of the facts and inferences underpinning the warrant. Id.³

Probable cause exists where the facts recited in the affidavit establish "`a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Baldyga, 233 F.3d 674, 683 (1st Cir.2000), cert. denied, ___ U.S. ___, 122 S.Ct. 164, 151 L.Ed.2d 112 (2001) (quoting United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir.1997)). While we have declined to hold that a "controlled buy" of the type carried out by the officers here will always establish probable cause to search the location where the informant was sent to buy drugs, see Khounsavanh, 113 F.3d at 285, a properly conducted controlled buy is formidable evidence to support a search.

Our prior decisions in Khounsavanh and United States v. Garcia, 983 F.2d 1160 (1st Cir.1993), are instructive. In each of those cases, as in this one, police received a tip from an informant that drugs were being sold in one of the apartments in a three-family or three-story dwelling. They then arranged for the informant to make a controlled buy at that location. After searching the informant for drugs prior to the buy, and finding none, the police watched him enter and leave the building (though not the particular apartment in question). The returned informant stated that he had purchased drugs from one of the parties mentioned in his earlier tip. Finally, the police recovered from the informant illegal drugs of the same type described in the tip. See Khounsavanh, 113 F.3d at 285-87; Garcia, 983 F.2d at 1166-67. In both cases, we held that the buy gave enough corroboration of the assertion of illegal activity in the informant's tip to create probable cause, and we upheld both searches. See Khounsavanh, 113 F.3d at 285-86; Garcia, 983 F.2d at 1167.

Here, for similar reasons, we conclude that the totality of the circumstances reported in the affidavit was sufficient to establish probable cause to search Genao's second-floor apartment. The controlled heroin buy here was not perfectly monitored, nor (to judge from the affidavit) did the informant buyer verify the name or specific location of the seller after emerging from the building. The buy did, however, yield a recovery of heroin consistent with the informant's original tip, recorded in the affidavit, that Migdalia Ortiz and her husband, "name unknown," were selling heroin in the second-floor apartment. Moreover, as the affidavit notes, phone company records showed a listing for Jose Ortiz at 14 Benedict Street, second floor. In view of these facts, the buy gave sufficient corroboration of the original tip to justify the search.

II.

Genao next argues that even if the police were lawfully present on the second floor, he did not consent voluntarily to the search of the third floor, rendering the heroin and gun seized there inadmissible.

This argument has been waived. Genao raised no voluntariness challenge to the third-floor search in the district court. See Fed.R.Crim.P. 12(f); United States v. Santos Batista, 239 F.3d 16, 19-20 (1st Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 117, 151 L.Ed.2d 73 (2001) (pointing out that arguments to suppress evidence as illegally seized, if not raised at or before the suppression hearing, are treated as waived unless cause and prejudice can be shown; holding defendant's argument waived for this reason). More than that, his counsel, when questioned on this issue by the district court, expressly conceded that Genao was not making such a challenge. In light of this express concession to the court below, the argument is waived.⁴

Apart from the waiver, whether the government has established the voluntariness of consent to a search turns on the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Genao executed a consent-to-search form that gave him, in both English and Spanish, a thorough set of warnings about his rights and the effects of a search. In addition, Genao's volunteering the fact that he had a key to the third-floor apartment and showing the police how the key worked both indicate willing cooperation with the police. See United States v. Zapata, 18 F.3d 971, 977 (1st Cir.1994) (noting that defendant's act of freely handing over car keys to group of four officers was "evidence of consent inferable from conduct").

III.

Genao also argues that both of his confessions should have been suppressed as the products of constitutional violations. He claims that his first confession was coerced, which implicates the due process clauses of the Fifth and Fourteenth Amendments. See United States v. Vega-Figueroa, 234 F.3d 744, 749 (1st Cir.2000). He also claims that it resulted from custodial interrogation not preceded by appropriate warnings, which implicates the rule announced...