U.S. v. Gomez

• Decision Date: 11 July 1980
• Docket Number: 1058 and 1059,D,Nos. 1045,s. 1045
• Citation: 633 F.2d 999
• Parties: UNITED STATES of America, Appellee, v. Jorge GOMEZ and Henry Serna, Appellants. ockets 79-1441, 80-1040 and 80-1056.
• Court: U.S. Court of Appeals — Second Circuit

Page 999

633 F.2d 999

UNITED STATES of America, Appellee, v. Jorge GOMEZ and Henry Serna, Appellants.

Nos. 1045, 1058 and 1059, Dockets 79-1441, 80-1040 and 80-1056.

United States Court of Appeals, Second Circuit.

Argued May 5, 1980.

Decided July 11, 1980.

Barry I. Slotnick, New York City, for appellant Gomez.

F. Louis Caraballo, Brooklyn, N. Y., for appellant Serna.

Mary Ellen Kris, Asst. U. S. Atty., New York City (William M. Tendy, U. S. Atty., and Mary Jo White, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before FEINBERG, Chief Judge, and FRIENDLY and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

Appellants Jorge Gomez and Henry Serna appeal from judgments of conviction entered on guilty pleas in the Southern District of New York, Lee P. Gagliardi, District Judge, for violations of the federal narcotics laws.

Appellants pled guilty on November 19, 1979 after the district court, in a forty-five page opinion dated November 15, 1979, had denied in part and granted in part Serna's suppression motion and had denied Gomez' suppression motion in its entirety. ¹ Gomez pled guilty to one count of conspiring to distribute cocaine in violation of 21 U.S.C. § 846 (1976). Serna pled guilty to one count of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1976). ²

Appellants claim on appeal that certain evidence was seized by narcotics agents allegedly in violation of the Fourth Amendment. We find that the chief questions on appeal are (1) whether the agents were entitled to subject Serna to an investigatory stop outside Gomez' apartment, and (2) whether there were exigent circumstances and probable cause sufficient to justify arresting appellants without a warrant inside Gomez' apartment several minutes later.

Approximately ten minutes of rapidly unfolding events on the evening of August 15, 1979 must be dissected to determine when the investigatory stop terminated and the arrest began. As often is the case in this murky area, appellants' adverse reaction to the former led to the latter. The case is further complicated by the agents' use of force after the investigatory stop was thwarted by Serna's retreat into Gomez' apartment.

For the reasons below, we affirm.

I.

On an appeal where the facts are so critical, our task has been made considerably easier by the district court's detailed findings of fact which may be summarized as follows.

In mid-August 1979, as a result of various tips and investigations, members of the New York Drug Enforcement Task Force ³ suspected that Irma Mejia-Londono and, to a lesser extent, appellant Serna were engaged in narcotics trafficking. As early as 1977 an informant, previously found reliable, had informed members of the Task Force that Mejia was a major figure in the New York City cocaine trade. Over the next year and a half, the name "Irma" appeared in documents obtained in various narcotics investigations, including a drug-related double homicide. On several occasions the name was followed by a telephone number which was traced to a telephone at 340 East 80th Street in Manhattan listed in the name of appellant Henry Serna. The name "Henry" also appeared on some of these documents and was followed by the same telephone number. In July 1979 narcotics agents obtained the customer list of a major drug supplier. The list indicated that "Irma" had made multi-kilogram purchases of cocaine ranging as high as $1,000,000 in value. An adding machine tape obtained at the same time showed that "Henry" had made a $100,000 payment on account.

In light of this information, Police Officer Richard Werdann and Detective William Frawley, members of the Task Force, were dispatched on August 15, 1979 to conduct surveillance of Serna's apartment at 340 East 80th Street. By this time the agents had learned that Mejia was living at Serna's apartment. At 5:00 P.M., Werdann observed a red Mustang, known to be registered to Irma Mejia, exit the garage of the building. The car was driven by a male later identified as appellant Serna. Mejia was in the passenger seat holding a baby later identified as the fifteen month old child of Mejia and Serna. Frawley recognized Mejia because he had seen her the previous evening through a one-way mirror in a police precinct station where she was being questioned in the homicide investigation.

The agents then began a moving surveillance of the Mustang. They followed it to the upper West Side of Manhattan. This was an area of high narcotics activity. The car stopped at West 83rd Street and Amsterdam Avenue where Serna parked the car, got out and spoke to a female for several minutes. Serna reentered the car and drove one block west to Broadway and West 83rd Street. A male approached the car on the driver's side and spoke with Serna for three or four minutes before departing.

After another stop at 625 Columbus Avenue, Mejia and Serna drove to the northwest corner of Broadway and West 99th Street. Serna parked the car there, walked to the southwest corner of the intersection and made a telephone call from a booth on that corner. While making the call, Serna looked in the direction of the upper floors of the apartment building at the northwest corner of the intersection, 243 West 99th Street. After making the call Serna entered that building empty-handed. Approximately twenty minutes later, at 6:20 P.M., Serna left the building carrying a gold plastic shopping bag with black lettering. Mejia and Serna then drove back to 625 Columbus Avenue. Leaving the bag in the car, Serna entered a restaurant at that address and emerged ten minutes later.

By this time the agents believed that the shopping bag contained either drugs or money. They concluded that, if Mejia and Serna were to take the bag to their apartment, it must contain only money, the fruits of a completed drug transaction. If the bag were to be taken to another building, however, the agents believed that it probably would contain drugs, in which event they would attempt to stop Mejia and Serna for questioning.

Mejia and Serna drove to 295 Bennett Avenue in the Bronx, where the pace of the proceedings quickened. They emerged from the car and walked down a driveway leading to the rear entrance of the building. Mejia was carrying the child. Serna was carrying the shopping bag. Special Agent Patrick Shea, who had joined the surveillance team by now, and Frawley followed on foot. For a brief moment the agents lost sight of Mejia and Serna as they entered the building. The agents pursued and entered the locked entrance with the assistance of some occupants of the building who were entering just as Shea and Frawley reached the door. Finding that the elevators were at the upper floors of the building, they concluded that Mejia and Serna must have taken the stairs. Upon opening the door of the stairwell, they heard voices and the sound of a door closing on the next landing. Shea and Frawley ran up the stairs to the second floor, opened the door and heard voices and the release of a door chain coming from an apartment around the corner to their right. They went around the corner in the direction of the noises and saw Serna at the threshold of apartment 2A with one foot in, one foot out. Mejia was not in sight, having already entered the apartment. Shea and Frawley, who were about fifteen feet from the apartment, displayed their badges and shouted "police", thereby implicitly ordering Serna to stop. Upon seeing the agents, Serna entered the apartment and slammed the door in the faces of the agents. The agents knocked on the door, announcing that they were police and requesting that the door be opened. They also began to kick and bang on the door.

Shea then sent Frawley to join Werdann outside to prevent escape of the occupants or loss of contraband through the windows of the second floor apartment. Shea continued to bang on the door, demanding that it be opened. From time to time, he put his ear to the door and heard voices, the scurrying of feet, the sound of water running through pipes and the sound of a toilet flushing.

Outside, Werdann spotted Serna at the window. He displayed his badge, announced that he was a police officer and requested that Serna come out. Serna withdrew. When Mejia came to the window moments later, Werdann repeated the same demands as he had made to Serna. She also withdrew.

Meanwhile, Shea and another agent continued to bang at the door. Finally, approximately seven to ten minutes after Serna had slammed the door shut, the occupants opened the door. Mejia, Serna and appellant Gomez were found inside. They were arrested immediately. The officers then conducted a security check of the apartment to ensure that no other occupants were present. In so doing, the officers observed in plain view white powder on the kitchen floor, water all over the bathroom floor, a plastic bag in the toilet bowl, large amounts of money in an open safe, a loaded .38 caliber revolver in a hallway closet, a cocaine press in another hallway closet and on the bedroom floor the gold plastic shopping bag which Serna had had when he entered the apartment. Two plastic bags with white residue were protruding from the shopping bag. The agents then advised Mejia, Serna and Gomez of their constitutional rights in Spanish. They also took immediate steps to obtain a search warrant.

Victor Rita, an investigator from the Immigration and Naturalization Service (INS), arrived on the scene in response to a request by the narcotics agents who suspected that the three persons arrested were illegal aliens. Rita readvised them in Spanish of their rights and questioned each as to his or her alienage. Upon determining that Gomez was a legal alien from Colombia, Rita ceased questioning him. Mejia, however, admitted that she had entered the United States illegally from Colombia. Rita also discovered that the visitor's visa which was in the possession of Serna had expired....